Executive privilege since united states v. nixon: Issues of motivation and accommodation

Minnesota Law Review

Volumn 83, Issue 5, 1999, Pages 1127-1140

  Johnsen, Dawn ^a,b  

^a INDIANA UNIVERSITY   (United States)

^b United States Department of Justice   (United States)

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[No Author keywords available]

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EID: 37849188898     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (28)

1. 418 U.S. 683 (1974).
2. Mark J. Rozell, Executive Privilege and the Modern Presidents: In Nixon's Shadow, 83 MINN. L. REV. 1069, 1126 (1999).
3. Rozell carries this point too far, however, in arguing that Nixon's successors routinely have concealed their use of executive privilege: "A common tactic is to devise some other phrase or use some other power to justify with-holding information when an executive privilege claim would have been appropriate." Id. at 1071. As I will discuss, this criticism reflects a fundamental misunderstanding of the elements of the process of accommodation, a long-standing practice by which the President and Congress resolve disputes regarding access to executive branch materials. I also disagree with Rozell's implicit suggestion that each President should adopt new guidelines on executive privilege. For example, the procedures President Reagan set forth in a 1982 memorandum remain in effect today, and there is great value in such continuity. See Memorandum from President Ronald Reagan to the Heads of Executive Departments and Agencies, Re: Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982).
4. Rozell, supra note 2, at 1072. I also fully endorse his conclusion that legislation defining and limiting executive privilege is unwarranted-and would add that such legislation might encounter significant constitutional impediments-because Congress possesses ample powers to challenge presidential assertions of executive privilege, including its authorities related to oversight, appropriations, confirmations and impeachment.
5. In some instances, my disagreement stems not from differences in analysis, but from what I view as mistaken characterizations of the relevant facts, which admittedly can be difficult to ascertain in this area. For example, Rozell states that the Bush Administration created a "secret opinions policy" to deny Congress a legal opinion of the Department of Justice's Office of Legal Counsel (OLC). He asserts that "Congress traditionally has not been denied access to OLC decision memoranda." Id. at 1114. In fact, the policy of keeping confidential certain sensitive OLC legal opinions was not new to the Bush Administration and is entirely consistent with the principle of executive privilege. Rozell himself notes that President Reagan asserted executive privilege to prevent the release to Congress of OLC legal opinions. See id. at 1099.
6. Id. at 1071. He also describes the privilege as "an accepted doctrine when appropriately applied to two circumstances: (1) certain national security needs and (2) protecting the privacy of White House deliberations when it is in the public interest to do so." Id. at 1070. This latter characterization is somewhat narrower, and unduly so, in that it refers only to "White House deliberations." The privilege also is available for deliberative communications that take place elsewhere in the executive branch, as well as for nondeliberative presidential communications. See In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (discussed infra at note 13); Memorandum from John Harmon, Assistant Attorney General, Office of Legal Counsel, to the Attorney General, Re: The Constitutional Privilege for Executive Branch Deliberations: The Dispute with a House Subcommittee over Documents Concerning the Gasoline Conservation Fee (Jan. 13, 1981) (on file with author). Finally, executive privilege has long been recognized as appropriately asserted to protect information regarding open law enforcement investigations. See 40 Op. Att'y Gen. 45, 46 (1941).
7. Rozell, supra note 2, at 1122.
8. Id. at 1118 (footnote omitted).
9. Id. at 1125.
10. See id. at 1121.
11. Id.
12. Id.
13. Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974). The United States Court of Appeals for the District of Columbia Circuit first articulated this standard in refusing to enforce a subpoena issued by the Senate Select Committee on Presidential Campaign Activities for tape recordings of conversations in President Nixon's offices. See id. at 726. The D.C. Circuit recently reviewed the law of executive privilege, including as discussed in Senate Select Committee and United States v. Nixon, and confirmed that "the Nixon cases establish the contours of the presidential communications privilege." In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). The court there considered an assertion of executive privilege in the context of an Independent Counsel investigation and held that where the President invokes presidential communications privilege, the documents become presumptively privileged and the privilege is more difficult to surmount than in the more general case of deliberative communications. Moreover, the court held that unlike the deliberative process privilege, which applies only to the deliberative or advice portions of the document sought, the presidential communications privilege encompasses documents in their entirety, including purely factual information, and extends to post-decisional communications See id. at 744-46.
14. Letter from Attorney General Janet Reno to the President (Sept 30 1996) (on file with author).
15. Rozell states, "Clinton never made a case that releasing the memorandum would cause any undue harm. It appeared that he only stood to harm his own political standing by releasing a document that contained embar-rassing information." Rozell, supra note 2, at 1121.
16. For example, Rozell characterizes President George Washington's views on executive privilege as follows: "At no point did [President Washington] believe that a President could withhold information to protect himself from politically embarrassing information or to cover-up conversations about potential wrongdoing in the White House." Id. at 1070.
17. The United States Court of Appeals for the District of Columbia Circuit recognized this duty of each branch to accommodate the legitimate needs of the other in considering a House subcommittee's request for executive branch information: "The Constitution contemplates such accommodation. Negotiation between the two branches should thus be viewed as a dynamic process affirmatively furthering the constitutional scheme." United States v. AT&T, 567 F.2d 121,130 (D.O. Cir. 1977).
18. 418 U.S. 683, 708 (1974). The Court in Nixon held that the need for confidentiality in presidential communications was outweighed by prosecutorial need in the particular context of a criminal trial of President Nixon's close advisers, where President Nixon was named as an unindicted co-conspirator. The Court noted the likely limited effect of its holding: "[W]e cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution." Id. at 712.
19. Harmon, supra note 6, at 10. The memorandum explained further, [T]he President must maintain a climate in which executive branch advisers do not feel compelled to write and speak for a larger audience. That is, he must be able to assure his advisers that their deliberations will be made public, if at all, only in exceptional circumstances. Anything that undermines this assurance impairs, to a degree, the ability of the executive branch to perform its constitutional functions. This is the basis of the constitutional privilege for executive branch deliberations. Id. at 10-11.
20. Rozell, supra note 2, at 1124.
21. Clearly, as the court noted, "[p]urely private conversations that did not touch on any aspect of the President's official duties or relate hi some manner to presidential decision-making would not properly fall within the executive privilege." In re Grand Jury Proceedings, 5 F. Supp. 2d 21, 26 (D.D.C.), affd in part, rev'd in part sub nom. In re Lindsey, 158 F.3d 1263 (D.O. Cir.), and cert denied, 119 S. Ct. 466 (1998) (footnote omitted). The court appropriately recognized, however, that "the President does need to address personal matters in the context of his official decisions." Id.
22. The court required Independent Counsel Starr to demonstrate "first, that each discrete group of the subpoenaed materials likely contains important evidence; and second that this evidence is not available with due diligence elsewhere." Id. at 28 (quoting In re Sealed Case, 121 F.3d 729, 754 (D.C. Cir. 1997)).
23. See Letter from Attorney General Janet Reno to the President (May 23, 1996) (on file with author); see also Letters from Jack Quinn, Counsel to the President, to William F. Clinger, Jr., Chairman, Committee on Government Reform and Oversight, U.S. House of Representatives (May 3, May 9, May 30, June 25, and Aug. 15, 1996) (on file with author) (describing factual background and legal basis for assertion of privilege).
24. See Rozell, supra note 2, at 1103 ("[A] number of controversies during his presidency bring to light how his administration exercised that power in a crafty, even hidden-hand, fashion.").
25. Id. at 1102.
26. Id. at 1082.
27. See Harmon, supra note 6, at 16.
28. Executive Privilege-Secrecy in Government: Hearings Before the Subcomm. on Intergovernmental Relations of the Senate Comm. on Gov't Operations, 94th Cong. 125 (1975) (statement of Antonin Scalia, Assistant Attorney General, Office of Legal Counsel).