The president's secrets

George Washington Law Review

Volumn 76, Issue 2, 2008, Pages 197-261

  Lee, Gia B ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 41349106622     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (635)

1. See Dan Eggen & Paul Kane, 2 Former Aides to Bush Get Subpoenas: Miers, Taylor Had Roles in Firings of U.S. Attorneys, WASH. POST, June 14, 2007, at A1.
2. See Eric Lipton, White House Declines to Provide Storm Papers, N.Y. TIMES, Jan. 24, 2006, at A1.
3. See Philip Shenon & Richard W. Stevenson, 9/11 Panel Wants Rice Under Oath in Any Testimony, N.Y. TIMES, Mar. 29, 2004, at A1.
4. See Elisabeth Bumiller & David D. Kirkpatrick, Bush Refuses to Release Nominee's Papers, N.Y. TIMES, Oct. 24, 2006, at A3.
5. In 2004, the General Accounting Office's ("GAO") legal name became the "Government Accountability Office." See GAO's Name Change and Other Provisions of the GAO Human Capital Reform Act of 2004, http://www.gao.gov/about/namechange.html (last visited Oct. 23,2007) (citing GAO Human Capital Reform Act of 2004, Pub. L. 108-271, 118 Stat. 811).
6. See Charles Lane, High Court Hears Case on Cheney Energy Panel: White House Argues for Confidentiality, WASH. POST, Apr. 28, 2004, at A1.
7. See Jo Becker, Work on Rights Might Illuminate Roberts's Views: Democrats Seek Papers, but Administration Balks, WASH. POST, Sept. 8, 2005, at A1;
8. Washington in Brief: For the Record, WASH. POST, Mar. 19, 2005, at A8.
9. See Sheryl Gay Stolberg, 2 Decline to Testify on Drug Cost, N.Y. TIMES, Apr. 2,2004, at A17;
10. Jim VandeHei, Bush Reasserts Presidential Prerogatives: Eavesdropping, Katrina Probe Cited as Concerns, WASH. POST, Jan. 27, 2006, at A6.
11. See, e.g., ADAM CARLYLE BRECKENRIDQE, THE EXECUTIVE PRIVILEGE: PRESIDENTIAL CONTROL OVER INFORMATION 108-09 (1974) (Kennedy and Nixon);
12. Mark J. Rozell, Executive Privilege and the Modern Presidents: In Nixon's Shadow, 83 MINN. L. REV. 1069, 1071-93 (1999) (Nixon, Ford, and Carter);
13. Gerald Wetlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege, 65 IND. L. REV. 845, 865-66 (1990) (Eisenhower);
14. infra notes 10-14 and accompanying text (Clinton).
15. See Katharine Q. Seelye, Clinton Refuses Subpoena for Material on Clemency: Says Congress Lacks Authority over the Matter, N.Y. TIMES, Sept. 17, 1999, at A1.
16. See Brian D. Smith, A Proposal to Codify Executive Privilege, 70 GEO. WASH L. REV. 570, 596 (2002);
17. Stephen Labaton, Testing of a President: The Supreme Court; Administration Loses Two Legal Battles Against Starr, N.Y. TIMES, NOV. 10, 1998, at A27.
18. In litigation, the aides asserted the rationale as a basis for attorney-client privilege. See In re Lindsey, 148 F.3d 1100, 1103 (D.C. Cir. 1998).
19. See Neil A. Lewis, Freeh Says Reno Clearly Misread Prosecutor Law, N.Y. TIMES, Jul. 16, 1998, at A1;
20. David E. Rosenbaum, Panel Votes to Charge Reno with Contempt of Congress, N.Y. TIMES, Aug. 7, 1998, at A1.
21. See Tim Weiner, Congress Is Denied Report on Bosnia: Citing Privilege, Clinton Bars Data on Iran Arms Exports, N.Y. TIMES, Apr. 16, 1996, at A1.
22. See Lester Brickman, Foster's Papers: What Executive Privilege?, N.Y. TIMES, Aug. 2, 1995, at A19. The Administration also stressed the need for confidentiality to encourage candor as a justification for asserting the attorney-client privilege.
23. See id.
24. United States v. Nixon (Nixon I), 418 U.S. 683 (1974).
25. See id. at 708.
26. Id. at 705. The Court also explained that it recognized a presumptive privilege for presidential communications because of the "necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking."
27. Id. at 708.
28. For a comparative analysis of the impact of confidentiality on deliberations in a variety of institutional contexts, see Gia Lee, Secrecy, Deliberation & Institutional Design (unpublished manuscript on file with author).
29. See Diane Courselle, Struggling with Deliberative Secrecy, Jury Independence, and Jury Reform, 57 S.C. L. REV. 203, 211 (2005);
30. J. Woodford Howard, Jr., Comment on Secrecy and the Supreme Court, 22 BUFF. L. REV. 837, 839-40 (1973);
31. Alison Markovitz, Jury Secrecy During Deliberations, 110 YALE L.J. 1493, 1505-15 (2001);
32. Laurence H. Tribe, Trying California's Judges on Television: Open Government or Judicial Intimidation?, 65 A.B.A. J. 1175, 1178 (1979);
33. Note, The Law Clerk's Duty of Confidentiality, 129 U. PA. L. REV. 1230, 1237-38 (1981).
34. See Lisa M. Nijm, Pitfalls of Peer Review: The Limited Protections of State and Federal Peer Review Law for Physicians, 24 J. LEGAL MED. 541, 542 (2003);
35. Kent M. Weeks, The Peer Review Process: Confidentiality and Disclosure, 61 J. HIGHER EDUC. 198, 201 (1990).
36. See John Powers, Jr., Eroding the Blue Wall of Silence: The Need for an Internal Affairs Privilege of Confidentiality, 5 SUFFOLK J. TRIAL & APP. ADVOC. 19, 29-30, 35 (2000).
37. See Swidler & Berlin v. United States, 524 U.S. 399,403 (1998);
38. Jaffee v. Redmond, 518 U.S. 1, 11-12 (1996);
39. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981);
40. Trammel v. United States, 445 U.S. 40, 51 (1980);
41. Fisher v. United States, 425 U.S. 391, 403 (1976).
42. See generally Developments in the Law: Privileged Communications, 98 HARV. L. REV. 1450, 1612 (1985) (noting that privileges protecting institutional communicative processes exist so as not to chill internal exchanges of information and opinions).
43. See generally RAOUL BEROER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH (1974);
44. BRECKENRIDOE, supra note 9;
45. MARK J. ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL POWER, SECRECY, AND ACCOUNTABILITY (2d ed. 2002);
46. Akhil Reed Amar, Nixon's Shadow, 83 MINN. L. REV. 1405 (1999);
47. George W. Calhoun, Confidentiality and Executive Privilege, in THE TETHERED PRESIDENCY: CONGRESSIONAL RESTRAINTS ON EXECUTIVE POWER 172-95 (Thomas M. Franck ed., 1981);
48. Archibald Cox, Executive Privilege, 122 U. PENN. L. REV. 1383 (1974);
49. Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal-Do Nothing, 48 ADMIN. L. REV. 109 (1996);
50. Christopher Griffin, An Egalitarian Case Against Executive Privilege, 12 J. INFO. ETHICS 34 (2003);
51. Roberto Iraola, Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions, 87 IOWA L. REV. 1559 (2002);
52. Dawn Johnsen, Executive Privilege Since United States v. Nixon.' Issues of Motivation and Accommodation, 83 MINN. L. REV. 1127 (1999);
53. Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 IOWA L. REV. 489 (2007);
54. Robert Kramer & Herman Marcuse, Executive Privilege - A Study of the Period 1953-1960 (pts. 1 & 2), 29 GEO. WASH. L. REV. 623 (1961);
55. Randall K. Miller, Congressional Inquests: Suffering the Constitutional Prerogative of Executive Privilege, 81 MINN L. REV. 631 (1997);
56. Michael Stokes Paulsen, Nixon Now: The Courts and the Presidency After Twenty-Five Years, 83 MINN. L. REV. 1337 (1999);
57. Todd D. Peterson, Prosecuting Executive Branch Officials for Contempt of Congress, 66 N.Y.U. L. REV. 563 (1991);
58. Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 MINN. L. REV. 1143 (1999);
59. Mark J. Rozell, Executive Privilege Revived?: Secrecy and Conflict During the Bush Presidency, 52 DUKE L.J. 403 (2002);
60. Rozell, supra note 9, at 1070;
61. William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS. 102 (1976).
62. See infra Part I.
63. Though two scholars have questioned the validity of the claim, neither has analyzed the issue in-depth. See Berger, supra note 23, at 243-45 (noting that the candor claim was a "debatable assumption");
64. Griffin, supra note 23, at 37-39 (expressing skepticism about the candor rationale). Some journalistic commentators have also raised doubts about the claim's validity.
65. See John W. Dean, WORSE THAN WATERGATE 184-85 (2004);
66. William Safire, Behind Closed Doors, N.Y. TIMES, Dec. 17, 2003, at A1;
67. Bruce Fein, Executive Nonsense, SLATE, July 11, 2007, http://slate.com/id/2170247.
68. Scholars have given some attention to related questions in discussing the deliberative process privilege, which applies more broadly to communications among all executive branch officials. See Russell L. Weaver & James T.R. Jones, The Deliberative Process Privilege, 54 MO. L. REV. 279, 316-17 (1989);
69. Wetlaufer, supra note 9, at 886-90. For a brief description of some of the differences between the presidential communications privilege and the deliberative process privilege
70. see infra Part I.A.
71. United States v. Nixon (Nixon I), 418 U.S. 683, 705 (1974).
72. Kathleen Sullivan, for example, has stated that the privilege "reflects the very common sense principle that you couldn't conduct policy-making in the White House if every top aide to the President knew that his or her communications with the President or with each other could be revealed to the whole world at the drop of a hat." The NewsHour with Jim Lehrer (PBS television broadcast Mar. 24, 1998), available at http://www.pbs.org/newshour/bb/white_house/jan-june98/executive_3-24.html.
73. Similarly, Akhil Amar has contended that "[s]enators must be free to talk candidly and confidentially amongst themselves and with staff in cloakrooms; judges must enjoy comparable freedom in superconfidential judicial conferences, and in conversations with law clerks; jurors in the jury room ordinarily deliberate together with absolute secrecy to promote candor; and the same basic principle holds true for the Presidency and the Oval Office." Amar, supra note 23, at 1410.
74. See Paulsen, supra note 23, at 1340-41.
75. Id. at 1381.
76. ROZELL, supra note 23, at 46-47.
77. See BRECKENRIDGE, supra note 9, at 103-04;
78. Iraola, supra note 23, at 1573-74;
79. Kitrosser, supra note 23, at 500.
80. See Prakash, supra note 23, at 1143, 1149-89.
81. The Supreme Court first acknowledged the privilege for presidential communications in the context of President Nixon's efforts to protect the confidentiality of his personal conversations with his chief White House advisors in the Oval Office. Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1114 (D.C. Cir. 2004) (citing United States v. Nixon (Nixon I), 418 U.S. 683, 705 (1974)). The Court has not specified whether the privilege extends "beyond communications directly involving and documents actually viewed by the President."
82. See id. The D.C. Circuit has held that the privilege extends only to those communications '"solicited and received' by the President or his immediate White House advisers who have 'broad and significant responsibility for investigating and formulating the advice to be given the President.'"
83. Id. (quoting In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997)).
84. To be clear, this Article focuses on the candor-based justification for maintaining the confidentiality of presidential deliberations underlying publicly acknowledged policies. It thus does not examine other justifications-such as the need to protect national security secrets or to preserve the President's ability to act with surprise-for maintaining confidential deliberations. Nor does it analyze rationales for keeping presidential policies or conduct secret.
85. Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004).
86. See id. at 385.
87. United States v. Nixon (Nixon I), 417 U.S. 683, 684 (1974);
88. Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425 (1977).
89. See infra notes 269 & 276 and accompanying text.
90. See infra Part III.A.
91. See infra Part III.A.
92. For an illuminating discussion of the significance of disclosure in constitutional law, see generally Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. PA. L. REV. 1 (1991) (analyzing the risks and benefits of government disclosure of information).
93. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
94. See id. at 138-39.
95. See id. at 143.
96. Id. at 144-45. Echoing that sentiment, Chief Justice Marshall noted in his opinion for the Court that the case involved no "intrusion into the secrets of the cabinet."
97. Id. at 170.
98. Id. at 144. Four years later, sitting as circuit judge in the Aaron Burr trial for treason, Chief Justice Marshall, who had authored Marbury, again suggested that presidential communications were entitled to confidentiality.
99. See United States v. Burr, 25 F. Cas. 30, 37 (C.C.D. Va. 1807) ("If [the President's letter] does contain any matter which it would be imprudent to disclose, which it is not the wish of the executive to disclose, such matter, if it be not immediately and essentially applicable to the point, will, of course, be suppressed.").
100. For further discussion of the Burr trial, see BERGER, supra note 23, at 187-94;
101. Paul A. Freund, The Supreme Court, 1973 Term-Foreword: On Presidential Privilege, 88 HARV. L. REV. 13, 23-31, 24 n.60 (1974);
102. Nathanial L. Nathanson, Commentary, From Watergate to Marbury v. Madison: Some Reflections on Presidential Privilege in Current and Historical Perspectives, 16 ARIZ. L. REV, 59, 61-65 (1974).
103. Notably, in EPA v. Mink, 410 U.S. 73 (1973), the Court had occasion to consider the extent to which presidential communications should receive protection from disclosure
104. see id. at 91-92 (noting that the government stressed that the materials were "submitted directly to the President by top-level Government officials" and "involve[d] matters of major significance"), but decided the issue by discussing the deliberative process privilege as applied more generally to government communications.
105. See id. at 91-93.
106. Although the President and Congress had many disputes over access to information, limits on congressional standing and the courts' reluctance to engage in political battles meant that very few struggles reached the courts. See BRECKENRIDGE, supra note 9, at 158-59;
107. DANIEL N. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDINO FATHERS 79 (1981);
108. MORTON ROSENBERG, CONG. RESEARCH SERV., PRESIDENTIAL CLAIMS OF EXECUTIVE PRIVILEGE: HISTORY, LAW, PRACTICE AND RECENT DEVELOPMENTS 1 (1999);
109. ROZELL, supra note 23, at 101;
110. Cox, supra note 23, at 1426;
111. Kramer & Marcuse, supra note 23, at 903.
112. An important court of appeals case considering the presidential privilege prior to Nixon I was Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 726-27 (D.C. Cir. 1974).
113. United States v. Nixon (Nixon I), 418 U.S. 683, 706 (1974).
114. Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425, 446-47 (1977). The D.C. Circuit has referred to this privilege as the "presidential communications privilege."
115. See, e.g., Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1109-14 (D.C. Cir. 2004);
116. In re Sealed Case, 121 F.3d 729, 742-57 (D.C. Cir. 1997).
117. Nixon I, 418 U.S. at 708. 50
118. Id.
119. Nixon II, 433 U.S. at 449
120. (quoting Nixon I, 418 U.S. at 711, 713, 708, respectively).
121. See EPA v. Mink, 410 U.S. 73, 91-93 (1973);
122. Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939, 947 (Ct. Cl. 1958);
123. Arthur Piacenti, The Deliberative Process Privilege: Preserving Candid Communications or Facilitating Evasion of Justice, 12 REV. LITIG. 275, 275-78 (1992);
124. Weaver & Jones, supra note 25, at 845-48;
125. Wetlaufer, supra note 9, at 287-90.
126. See United States v. Irvin, 127 F.R.D. 169, 172 (CD. Cal. 1989).
127. See Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866-67 (D.C. Cir. 1980).
128. See In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997).
129. See United States v. Nixon (Nixon I), 418 U.S. 683, 706 (1974).
130. As I discuss below, the Court's recent decision in Cheney v. U.S. District Court, 542 U.S. 367 (2004), renders that limit, at least in civil cases, less meaningful.
131. See infra Part I.B.
132. See Nixon I, 418 U.S. at 686.
133. Id. at 712.
134. Id.
135. Id. at 706;
136. see also Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425, 447 (1977)
137. (quoting Nixon I, 418 U.S. at 706).
138. Nixon I, 418 U.S. at 712.
139. Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425 (1977).
140. See id. at 455.
141. Presidential Recordings and Materials Preservation Act, Pub. L. No. 93-526, 88 Stat. 1695 (1974).
142. Nixon II, 433 U.S. at 429.
143. Id. at 449
144. (quoting Brief for the Appellees at 33, Nixon II, 433 U.S. 425 (No. 75-1605)).
145. Id. at 451.
146. Id. at 451-52.
147. See id. at 452-54.
148. United States v. Nixon (Nixon I), 418 U.S. 683, 706 (1974).
149. See Nixon II, 433 U.S. at 455;
150. Nixon I, 418 U.S. at 712-13.
151. The lower courts, however, have considered some cases. See, e.g., Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108 (D.C. Cir. 2004);
152. In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997);
153. Nixon v. Freeman, 670 F.2d 346 (D.C. Cir. 1982);
154. Dellums v. Powell, 642 F.2d 1351 (D.C. Cir. 1980);
155. Dellums v. Powell, 561 F.2d 242, 245-49 (D.C. Cir. 1977);
156. United States v. Haldeman, 559 F.2d 31, 76-77 (D.C. Cir. 1976);
157. United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976);
158. Sun Oil Co. v. United States, 514 F.2d 1020, 1024 (Ct. Cl. 1975);
159. In re Grand Jury Proceedings, 5 F. Supp. 2d 21, 24-30 (D.D.C. 1998)
160. affd in part, rev'd in part sub nom., In re Lindsey, 158 F.3d 1268 (D.C. Cir. 1998).
161. Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004).
162. See id. at 383-89.
163. See id. at 373. The two plaintiffs filed separate actions, which the district court consolidated.
164. Id. The plaintiffs also sued the task force itself as well as members of the Cabinet appointed to the task force and private individuals alleged to be members.
165. See id. at 374.
166. Federal Advisory Committee Act ("FACA"), 5 U.S.C app. 2 §§1-15 (2000).
167. 5 U.S.C. app. 2 §10;
168. see Cheney, 542 U.S. at 373.
169. See Cheney, 542 U.S. at 374.
170. Id. The task force dissolved after suit was filed, but before discovery.
171. See id. at 373, 375.
172. See id. at 387.
173. See id. at 374.
174. See id. at 375. Vice President Cheney argued, among other things, that the task force fell under the Act's exemption.
175. See id. He maintained that disregarding the exemption and applying the Act to the task force would impermissibly interfere with the President's responsibility under the Recommendations Clause, U.S. CONST, art. II, §3, cl. 1, to recommend legislation to Congress, and his power under the Opinions Clause, U.S. CONST, art. II, § 2, cl. 1, to require opinions of his department heads.
176. See Brief for the Petitioners at 28-32
177. Cheney, 542 U.S. 367 (No. 03-475). He also contended that the Act's application would violate separation-of-powers principles.
178. See id. In a separate case, the Comptroller General of the United States, the head of the GAO, also sued the Vice President in relation to his capacity as chair of the National Energy Policy Development Group.
179. See Walker v. Cheney, 230 F. Supp. 2d 51, 53 (D.D.C 2002). Pursuant to statutes providing the GAO with investigative and litigating authority, the Comptroller General sought documents concerning the identities of individuals who participated in task force meetings to determine, inter alia, whether the task force followed laws mandating outreach efforts in the development of energy policy, and whether the task force's composition called for compliance with the open-meeting and recordkeeping requirements of the FACA.
180. See id. at 67. The Vice President also invoked the President's confidentiality interest as a justification for dismissing the suit.
181. See id. at 61. The district court ruled in favor of the Vice President on standing grounds
182. see id. at 75, and the GAO did not appeal.
183. See Mike Allen, GAO Cites Corporate Shaping of Energy Plan, WASH. POST, Aug. 26, 2003, at A1.
184. See Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 230 F. Supp. 2d 12, 15-16 (D.D.C. 2002). Discovery, the court explained, could show that the Act did not apply to the task force, thus justifying summary judgment for the Vice President on statutory grounds and obviating the need to address the constitutionality of applying the Act to the Vice President.
185. Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 219 F. Supp. 2d 20, 45 (D.D.C. 2002). Though the preliminary discovery itself could raise some constitutional issues, the court acknowledged, those issues of executive privilege would be "much more limited in scope" than the broad constitutional challenge to the application of the Act.
186. Id. at 55.
187. See Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 233 F. Supp. 2d 16, 31 (D.D.C. 2002).
188. In re Cheney, 334 F.3d 1096, 1101 (D.C Cir. 2003).
189. Id. at 1104-07.
190. Cheney, 542 U.S. at 378, 392. Chief Justice Rehnquist as well as Justices Stevens, O'Connor, and Breyer joined in Justice Kennedy's majority opinion.
191. Id. at 372. Justice Stevens wrote a concurring opinion.
192. Id. at 392 (Stevens, J., concurring). Justice Thomas, joined by Justice Scalia, wrote an opinion concurring in part and dissenting in part; they would have reversed the judgment below and remanded with instructions to the district court to issue the writ.
193. Id. at 393, 395 (Thomas, J., concurring in part, dissenting in part). Justice Ginsburg wrote a dissent, in which Justice Souter joined.
194. Id. at 396 (Ginsburg, J., dissenting).
195. Id. at 391 (majority opinion).
196. See id. at 385.
197. See id.
198. Id. at 381. The Court also stressed that "the public interest requires that a coequal branch of Government 'afford Presidential confidentiality the greatest protection consistent with the fair administration of justice.' "
199. Id. at 382.
200. Id. at 385.
201. Id. at 389-90. The autonomy concern involved the need to prote' : the President from vexatious litigation so that he could perform his constitutional duties. For further discussion
202. see infra text accompanying notes 104-09.
203. See Id. at 383-89.
204. See id. at 383-84.
205. id. at 384 (quoting United States v. Nixon (Nixon I), 418 U.S. 683, 707-09 (1974)). In evaluating the Vice President's separation-of-powers objections, the Court appeared to undertake the same sort of balancing between competing interests that it would have had the President claimed the privilege.
206. See id. at 385. Thus, the Cheney Court ironically applied a privilege analysis at the same time that it held that the President need not raise the claim.
207. See id. at 386-87.
208. See id. at 384.
209. See id. at 384-85.
210. See id. at 385.
211. See id. at 386-88.
212. See id. at 372, 378.
213. Id. at 390-91 (suggesting that the district court should have, sua sponte, narrowed the discovery order).
214. See id. at 382.
215. See id.
216. Clinton v. Jones, 520 U.S. 681 (1997).
217. See Cheney, 542 U.S. at 381-85
218. (citing Jones, 520 U.S. 681).
219. See Jones, 520 U.S. at 684.
220. See Cheney, 542 U.S. at 389-90.
221. See id. at 382-86.
222. See id.
223. In describing the implications of ruling in favor of the Vice President, the D.C. Circuit noted, "Were we to hold, as [the Vice President and others] urge, that the Constitution protects the President and Vice President from ever having to invoke executive privilege, we would have transformed executive privilege from a doctrine designed to protect presidential communications into virtual immunity from suit." In re Cheney, 334 F.3d 1096, 1105 (D.C. Cir. 2003).
224. See supra note 8. To be clear, the argument based on candor is concerned primarily with the results, not the procedure, of presidential decision making. Candid discussions are valuable because of their presumed effects on actual decisions, not because of any conception of an ideal decision-making process.
225. Some might question for whom these "decisions" are "better." Decisions that are "better" for the President, politically, may not be "better" for the public more generally when they result in personal or partisan concerns trumping or displacing the public interest. Yet sometimes, of course, better decisions for the President, politically, may also be better for the public, as, for example, when the President selects a strategic course of action that will build and promote support for policies that serve the long-term public interest but are unpopular in the short term. For my purposes, I focus on whether confidential presidential deliberations lead to better decisions for the public more generally. I discuss briefly below basic criteria for assessing the quality of government decisions. See infra notes 197-98 and accompanying text.
226. One might question whether "better decisions" are the ultimate or sole end of presidential confidentiality. In many other contexts, societal practices and institutions protect confidentiality where the end might be something other than, or at least in addition to, better decisions. For instance, many evidentiary privileges protect confidential conversations for the purpose of fostering or preserving particular relationships, such as those between (1) spouses, see Wolfle v. United States, 291 U.S. 7, 17 (1934);
227. SEC v. Lavin, 111 F.3d 921, 933 (D.C. Cir. 1997), (2) clergy and penitent
228. see Trammel v. United States, 445 U.S. 40, 51 (1980), (3) doctors and patients
229. see id.;
230. Street v. Hedgepath, 607 A.2d 1238,1246 (D.C. 1992), and (4) attorneys and clients
231. Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998);
232. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). In addition, the reporter's privilege shields certain communications so that confidential sources will be willing to speak without fear of recriminations, thereby enhancing journalists' ability to collect and report information. Branzburg v. Hayes, 408 U.S. 665, 721 (1972) (Douglas, J., dissenting);
233. In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 991 (D.C. Cir. 2005) (Tatel, J., concurring);
234. Zerilli v. Smith, 656 F.2d 705, 710-11 (D.C. Cir. 1981). In the presidential context, confidentiality similarly receives protection at least in part to enhance relationships among the President and his advisors or to improve their abilities to collect and disseminate information. But those interests are predominantly, if not exclusively, designed to improve the quality of presidential decisions. Some defenses of confidentiality value candid communications as an end in itself.
235. See SISSELA BOK, SECRETS: ON THE ETHICS OF CONCEALMENT AND REVELATION 23-24 (1982) (discussing the significance of secrecy for individual flourishing).
236. As I discuss further below, many of these concerns underlie the First Amendment's protection for anonymous speech. See infra text accompanying notes 326-30.
237. For a study of the widespread phenomenon of preference falsification, see generally TIMUR KURAN, PRIVATE TRUTHS, PUBLIC LIES: THE SOCIAL CONSEQUENCES OF PREFERENCE FALSIFICATION (1995) (defining preference falsification as "the act of misrepresenting one's genuine wants under perceived social pressures").
238. United States v. Nixon (Nixon I), 418 U.S. 683, 706 (1974).
239. In responding to the President's request for advice concerning congressional subpoenas for pardon-related documents, the Department of Justice's Office of Legal Counsel opined that the President may rightfully assert privilege over those documents. See Memorandum from Janet Reno, Att'y Gen., Re: Assertion of Executive Privilege with Respect to Clemency Decision (Sept. 16, 1999), available at 1999 WL 33490208. Because the President's pardon power is plenary, Congress may not exercise legislative or oversight authority on pardon-related decisions, and thus lacks a specific need for pardon-related documents.
240. See id. By contrast, my emphasis here is on the likely chilling effect of disclosing pardon review information.
241. See Neil A. Lewis, Bush Claims Executive Privilege in Response to House Inquiry, N.Y. TIMES, Dec. 14, 2001, at A26.
242. See id.
243. See id. The Administration has made similar types of arguments to justify not disclosing advice underlying terrorist alerts.
244. See, e.g., Douglas Jehl & Richard W. Stevenson, New Qaeda Activity Is Said to Be Major Factor in Alert: Warning Stemmed from More than Moves of Terrorists Long Ago, Officials Say, N.Y. TIMES, Aug. 4, 2004, at A1 (reporting that the Bush administration had declined to disclose specific details justifying the raising of the terrorism alert level "out of concern that such a step could compromise intelligence and law enforcement operations").
245. Similar concerns underlie what has been referred to as the self-critical analysis privilege, which protects the confidentiality of internal reviews. See, e.g., Keyes v. Lenoir Rhyne Coll., 552 F.2d 579, 581 (4th Cir. 1977) (faculty evaluations);
246. Brown v. Thompson, 430 F.2d 1214, 1215-16 (5th Cir. 1970) (police records);
247. Reichhold Chems., Inc. v. Textron, Inc., 157 F.R.D. 522, 524-27 (N.D. Fla. 1994) (protecting environmental regulation compliance reports "prepared after the fact for the purpose of candid self-evaluation and analysis of the cause and effect of past pollution");
248. Granger v. Nat'l R.R. Passenger Corp., 116 F.R.D. 507, 510 (E.D. Pa. 1987) (internal railroad accident reports);
249. Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249, 250-51 (D.D.C. 1970) (medical staff reviews), aff'd, 479 F.2d 920 (D.C. Cir. 1973).
250. Tim Weiner, Congress Is Denied Report on Bosnia: Citing Privilege, Clinton Bars Data on Iran Arms Exports, N.Y. TIMES, Apr. 17, 1996, at A1.
251. See id. The question there was whether the Administration's actions constituted "covert action," which must be supported by a written presidential order and reported to Congress.
252. See id.
253. See id.;
254. Michael Dobbs & Ann Devroy, GOP Wants Probe of Clinton Policy that Let Bosnia Get Iranian Arms, BUFF. NEWS (N.Y.), Apr. 6, 1996, at A4;
255. Doyle McManus & James Risen, GOP Lawmakers Say Bosnia Arms Inquiries Rebuffed, L.A. TIMES, Apr. 18, 1996, at A12;
256. James Risen, House Panel to Probe Iran Arms to Bosnia, L.A. TIMES, Apr. 25, 1996, at A12.
257. See McManus & Risen, supra note 126, at A12;
258. Doyle McManus, U.S. Envoy May Have Aided Arms Convoy to Bosnia, L.A. TIMES, Apr. 17, 1996, at A1.
259. See Weiner, supra note 124, at A1.
260. See Walker v. Cheney, 230 F. Supp. 2d 51, 55-57 (D.D.C. 2002).
261. See id.
262. See id. at 59-60.
263. See Don Van Natta, Jr. & Neela Banerjee, Top G.O.P. Donors in Energy Industry Met Cheney Panel, N.Y. TIMES, Mar. 1, 2002, at A1.
264. It is true that identification of some parties would make it easier for an investigator to determine who to question to learn about the other parties in attendance.
265. See Walker, 230 F. Supp. 2d at 59.
266. Evidence suggests that live audiences have a greater impact on deliberants than do onlookers separated by time or space. See generally Robert S. Baron, Danny Moore & Glenn S. Sanders, Distraction as a Source of Drive in Social Facilitation Research, 36 J. PERSONALITY & SOC PSYCHOL. 816 (1978) (explaining how the presence of others affects task performance);
267. Eric S. Knowles, Social Physics and the Effects of Others: Tests of the Effects of Audience Size and Distance on Social Judgments and Behavior, 45 J. PERSONALITY & SOC. PSYCHOL. 1263 (1983) (finding that reactions to presence of others varies depending on audience proximity and size).
268. See Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U. PA. J. CONST. L. 345, 345, 410-11 (2000) [hereinafter Elster, Arguing and Bargaining];
269. Jon Elster, Deliberation and Constitution Making, in DELIBERATIVE DEMOCRACY 97, 109-11 (Jon Elster ed., 1998) [hereinafter Elster, Constitution Making].
270. Jon Elster, Strategic Uses of Argument, in BARRIERS TO CONFLICT RESOLUTION 236, 251 (Kenneth J. Arrow et al. eds., 1995) [hereinafter Elster, Strategic Uses]. Elster does not argue that secrecy thus led to the exclusive reliance on reason-based decision making at the Federal Convention.
271. See id. at 343,250-51. To the contrary, he argues that secrecy also led to the prevalence of "hard-nosed bargaining" as opposed to reason-based arguing for many of the convention's decisions.
272. See id, at 251;
273. see also Elster, Constitution Making, supra note 136, at 110 (noting that secrecy also shifts "the mode of the proceedings toward the bargaining end of the continuum");
274. Elster, Arguing and Bargaining, supra note 136, at 386 (same).
275. See Elster, Arguing and Bargaining, supra note 136, at 411.
276. Id.;
277. Elster, Strategic Uses, supra note 137, at 251;
278. see Elster, Constitution Making, supra note 136, at 111.
279. See, e.g., David A. Barrett, Facilitating Government Decision Making: Distinguishing Between Meetings and Nonmeetings Under the Federal Sunshine Act, 66 TEX. L. REV. 1195, 1211 (1988);
280. Nicholas Johnson, Open Meetings and Closed Minds: Another Road to the Mountaintop, 53 DRAKE L. REV. 11, 22-28 (2004);
281. Thomas H. Tucker, "Sunshine"-The Dubious New God, 32 ADMIN. L. REV. 537, 545-49 (1980);
282. Andrew D. Lipman & Joshua S. Lamel, Harsh Glare: Sunshine Has Scorched Frank Discussions Among Agency Members, LEGAL TIMES, Mar. 7, 2005, at 68. For an argument that the positive effects of the federal sunshine law, such as increased public debate and public access, outweigh the negative effects such as reduced candor and procedural burdens
283. see Terry W. Hartle & Stephen R. Chitwood, Increasing Public Access to Government: The Implementation and Impact of the Government in the Sunshine Act, 10 GOV'T PUBLICATIONS REV. 269, 277-81 (1983).
284. See David M. Welborn et al., Implementation and Effects of the Federal Government in the Sunshine Act, in ADMINISTRATIVE CONFERENCE OF THE UNITED STATES: RECOMMENDATIONS AND REPORTS 199, 229 (1984);
285. Barrett, supra note 140, at 1211.
286. See Administrative Conference of the United States, Report and Recommendation by the Special Committee to Review the Government in the Sunshine Act, 49 ADMIN. L. REV. 421, 422 (1997).
287. Welborn, supra note 141, at 229;
288. see Barrett, supra note 140, at 1211.
289. Welborn, supra note 141, at 229.
290. Johnson, supra note 140, at 25
291. (citing Welborn, supra note 141, at 228-32).
292. Id. at 25;
293. see Kathy Bradley, Do You Feel the Sunshine? Government in the Sunshine Act: Its Objectives, Goals, and Effect on the FCC and You, 49 FED. COMM. L.J. 473, 482 (1997).
294. Barrett, supra note 140, at 1211.
295. See RON SUSKIND, THE PRICE OF LOYALTY: GEORGE W. BUSH, THE WHITE HOUSE, AND THE EDUCATION OF PAUL O'NEILL 147-48 (2004).
296. The failure to recognize confidentiality as limited to only parts of larger decision-making processes also accounts for similar criticisms of government sunshine laws. See supra text accompanying notes 140-48.
297. See infra notes 151, 153 and accompanying text.
298. See Barbara Koremenos, Open Covenants, Clandestinely Arrived At 15 (unpublished manuscript, on file with author) (focusing on international treaty negotiations).
299. See Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425, 450-51 (1977).
300. See id. at 451 (holding that executive privilege survives the individual President's tenure while noting that the common practice of depositing official papers in presidential libraries illustrates that "[t]he expectation of confidentiality of executive communications thus has always been limited and subject to erosion over time after an administration leaves office").
301. For helpful discussions of secrecy's temporal dimension, see Pablo da Silveira, Representation, Secrecy, and Accountability, 12 J. INFO. ETHICS 8, 12-15 (2003);
302. Dennis F. Thompson, Democratic Secrecy, 114 POL. SCI. Q. 181, 184-85 (1999).
303. See Ellen E. Meade & David Stasavage, Publicity of Debate and the Incentive to Dissent-Evidence from the US Federal Reserve, 117 ECON. J. (forthcoming 2008) (manuscript at 26-27), available at http://www.nyu.edu/gsas/dept/politics/faculty/stasavage/feddeliberation11.pdf.
304. See id. at 1, 4.
305. id. at 4.
306. Under pressure from Congress, the FOMC in 1993 decided to publish lightly edited transcripts dating back to 1976. Id.
307. Prior to 1993, the FOMC's practice had been to tape record meetings, but most officials believed that the recordings were used to prepare minutes and were subsequently recorded over. Id. at 4, 17.
308. Accordingly, the researchers were able to compare pre-1993 transcripts, in which committee members believed their remarks would remain private, and post-1993 transcripts, in which the members expected eventual publication of their statements. Id. at 4.
309. Id. at 5.
310. The analysis controlled for variables such as the specific status of committee participants and other potential determinants of individual committee member positions. See id. at 5.
311. See id. at 26.
312. Some transcripts limit themselves to spoken words, while others include a range of nonverbal communications-facial expressions, body language, brief pauses, extended silences, laughs, intonations, etc. See, e.g., Adam Liptak, So, Guy Walks up to the Bar, and Scalia Says ..., N.Y. TIMES, Dec. 31, 2005, at A1 (noting that transcripts of Supreme Court oral arguments include the notation "[laughter]").
313. Some recount statements with or without attribution to the speaker. See, e.g., id. (noting that transcripts of Supreme Court oral arguments did not identify the justices by name until October 2004). And even when transcripts include attribution, some omit the actual names of the speakers and instead employ pseudonyms (e.g., "speaker A" or "speaker B"), which enable readers to decipher the views of particular speakers, but not necessarily the speakers' identities.
314. Cf. ELIE ABEL, LEAKING: WHO DOES IT? WHO BENEFITS? AT WHAT COST? 55-60 (1987) (noting that administration insiders regularly leak information to the press on the condition that the leaker remain anonymous or be identified only as an "Administration official");
315. Randy Dotinga, Off the Record, Newspapers Have a Problem, CHRISTIAN SCI. MONITOR, May 25, 2005, at 2 (same).
316. See Walker v. Cheney, 230 F. Supp. 2d 51, 56-57 (D.D.C. 2002).
317. Id. at 54
318. (quoting Complaint, Exhibit A at 2, Walker, 230 F. Supp. 2d 51 (No. 1:02cv00340)).
319. See id.
320. See Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425, 451-52 (1977).
321. See United States v. Nixon (Nixon I), 418 U.S. 683, 706 (1974).
322. Freedom of Information Act, 5 U.S.C. § 552 (2000 & Supp. IV 2004).
323. See 5 U.S.C. app. 2 § 10 (2000);
324. supra Part I.B.
325. See 5 U.S.C. § 552(a)(3).
326. Id. § 552(f)(1).
327. Kissinger v. Reports Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (quoting H.R. Conf. Rep. No. 1380, at 15, 93rd Cong., 2d Sess. 14 (1974));
328. see Armstrong v. Executive Office of the President, 90 F.3d 553, 557-58 (D.C. Cir. 1996); Meyer v. Bush, 981 F.2d 1288, 1292 (D.C. Cir. 1993).
329. Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440 (1989).
330. See id. at 466-67.
331. Id. at 448
332. (quoting Wash. Legal Found. v. U.S. Dep't of Justice, 691 F. Supp. 483, 496 (1988),
333. aff'd sub nom. Pub. Citizen, 491 U.S. 440);
334. see id. at 466-67.
335. The D.C. Circuit has similarly relied on the avoidance doctrine to interpret FACA narrowly to exclude deliberations involving the President or his high-level advisors. See In re Cheney, 406 F.3d 723, 728-29 (D.C. Cir. 2005) (holding that nongovernmental employees qualify as de facto members of presidential advisory committees only if they are voting members, and then dismissing the case because neither Judicial Watch nor Sierra Club alleged that NEPDG included nonfederal voting members);
336. Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 910-11 (D.C. Cir. 1999) (holding that the First Lady was a "federal employee" for purposes of FACA, and hence, the President's health care task force, which included only the First Lady and other federal employees, did not fall under FACA).
337. The comparative timing and details of disclosure would also lead FACA to have a greater chilling effect than FOIA.
338. 5 U.S.C. app. 2 § 10 (2000).
339. See 5 U.S.C. § 552(a)(3)(A) (2000 & Supp. IV 2004).
340. See supra notes 176-77 and accompanying text.
341. 5 U.S.C. app. 2 § 10(a)(1).
342. See, e.g., Michael Beschloss, Knowing What Really Happened, 32 PRESIDENTIAL STUD. Q. 642, 644 (2002);
343. David E. Rosenbaum, How Washington Remembers, and Forgets, N.Y. TIMES, Oct. 19, 1997, at D5;
344. Michael Tackett, President's Private Thoughts Can Now Too Easily Go Public, CHIC. TRIB., Feb. 10, 2002, at C1.
345. Of course this issue should not be overstated. Concerned first and foremost with providing the best advice, some advisors will nevertheless make records if not doing so would undermine their ability to make complex or difficult decisions. Cf. Elizabeth Thornburg, Rethinking Work Product, 77 VA. L. REV. 1515, 1530-31 (1991) (arguing that lawyers will nevertheless commit to writing their work product even if the work product doctrine were abolished).
346. Presidential advisors may also pursue other means of avoiding disclosure. Recent reports suggest that advisors in the current Administration have pursued such an alternative route. See Tom Hamburger, Rove, Others Were Warned to Save E-mails, L.A. TIMES, Apr. 14, 2007, at A10 (deleting e-mails).
347. Some White House advisors regularly used nongovernmental Republican National Committee servers to send e-mails related to government policymaking. See Michael Abramowitz, Rove E-Mail Sought by Congress May Be Missing: RNC Took Away His Access to Delete Files in 2005, WASH. POST, Apr. 13, 2007, at A1.
348. Congressional investigators allege that the advisors did so to avoid being required to make those e-mails available as official records. See id.
349. See United States v. Nixon (Nixon I), 418 U.S. 683, 705, 708 (1974);
350. supra notes 28-29 and accompanying text.
351. See S. Reicher & M. Levine, Deindividuation, Power Relations Between Groups and the Expression of Social Identity: The Effects of Visibility to the Out-Group, 33 BRIT. J. SOCIAL PSYCHOL. 145, 145-48 (1994)
352. [hereinafter Reicher & Levine, Power Relations];
353. S. Reicher & M. Levine, On the Consequences of Deindividuation Manipulations for the Strategic Communication of Self: Identiflability and the Presentation of Social Identity, 24 EUR. J, SOCIAL PSYCHOL. 511, 512, 519-22 (1994);
354. see also Karen M. Douglas & Craig McGarty, Identiflability and Self-Presentation: Computer-Mediated Communication and Intergroup Interaction, 40 BRIT. J. SOCIAL PSYCHOL. 399, 409 (2001) (noting that participants of a group "may feel more 'pressured' to adhere to the norms of their group because they are accountable for what they say").
355. See supra Part II.A.2.
356. See Reicher & Levine, Power Relations, supra note 182, at 145-48.
357. See id.
358. See id.
359. See id. at 146 ("[W]e should not think of deindividuation, in the sense of 'immersion' in a group, as leading to identity loss and unconstrained behaviour. Instead it leads to social identification and conformity to in-group stereotypes.").
360. See David M. Barrett, Secrecy and Openness in Lyndon Johnson's White House: Political Style, Pluralism, and the Presidency, 54 REV. POL. 72, 75-78 (1992) (discussing generally advisor complaints that President Johnson's management style stifled dissent).
361. See PAUL A. KOWERT, GROUPTHINK OR DEADLOCK 147-48 (2002).
362. See id. at 71 (Eisenhower administration);
363. NICHOLAS LEMANN, THE PROMISED LAND: THE GREAT BLACK MIGRATION AND HOW IT CHANGED AMERICA 137-39 (1991) (Kennedy administration).
364. See RICHARD A. CLARKE, AGAINST ALL ENEMIES: INSIDE AMERICA'S WAR ON TERROR 32, 244 (2004);
365. DAVID KUO, TEMPTING FAITH: AN INSIDE STORY OF POLITICAL SEDUCTION 204, 239-40;
366. RON SUSKIND, THE ONE PERCENT DOCTRINE 23, 26, 101 (2006);
367. SUSKIND, supra note 148, at 117, 151-52, 165-66, 327.
368. See SUSKIND, supra note 148, at 117, 151-53, 165-66, 327.
369. See id. at 52, 206-09.
370. Cf. John S. Koppel, Op-Ed., Bush Justice Is a National Disgrace, DENVER POST, July 5, 2007, at E2 (op-ed by career Department of Justice ("DOJ") attorney commenting on the inappropriate politicization of the DOJ);
371. Eric Lichtblau, President Asked Aide to Explore Iraq Link to 9/11, N.Y. TIMES, Mar. 29, 2004, at A1 (former top counterterrorism advisor, Richard A. Clarke, urging President to publicize his testimony and counterterrorism memoranda that he authored days before President took office).
372. As compared to presidential appointees, career civil servants outside the White House are more likely to see the public, rather than their superiors, as sympathetic to their views, and welcome, after the fact, the prospect of mandatory disclosure. The recent stream of federal employees who have publicized discrepancies between policy recommendations by career civil servants and the ultimate decisions by political appointees supports this point. An employee from the Department of Health and Human Services, for example, testified at a congressional hearing that agency officials had disregarded and revised budget estimates that he had provided for a controversial Medicare proposal. See Stolberg, supra note 8, at A17.
373. An individual involved in a DOJ decision leaked to reporters that senior officials had overruled a conclusion by department lawyers proposing that the Texas redistricting plan violated the Voting Rights Act, 42 U.S.C. §§1973 to 1973bb-1 (2000), and had approved the plan.
374. See Dan Eggen, Justice Staff Saw Texas Districting as Illegal: Voting Rights Finding on Map Pushed by DeLay Was Overruled, WASH. POST, Dec. 2, 2005, at A1;
375. Dan Eggen, Politics Alleged in Voting Cases: Justice Officials Are Accused of Influence, WASH. POST, Jan. 23, 2006, at A1;
376. Nina Totenberg, High Court Hears Texas Redistricting Case (NPR Radio Broadcast, Mar. 1, 2006), available at http://www.npr.org/ templates/story/story.php?storyId-5239025.
377. SUSKIND, supra note 148, at 323.
378. See, e.g., Bart Barnes, J.W. Fulbright, Outspoken Senator-Scholar, Dies, WASH. POST, Feb. 10, 1995, at A1 (describing how Senator's "stance helped mobilize widespread public dissent" against the Vietnam War).
379. I rely here on values traditionally associated with liberal democratic societies.
380. To be clear, I set forth these criteria to clarify the assumptions underlying my arguments that confidentiality, and the candor resulting from it, do not necessarily lead to better decisions. I neither offer a defense of these particular criteria, nor devote sustained analysis of whether particular presidential decisions meet them. Instead, I simply reference the criteria or rely on them implicitly when arguing that confidentiality and candor sometimes result in worse decisions. See, e.g., infra 231-32, 251-52 (explicit references to criteria);
381. 233-34, 236, 238-39 (implicit reliance on criteria).
382. Griffin, supra note 23, at 36.
383. See Stephen E. Ambrose, Why Didn't Nixon Burn the Tapes and Other Questions About Watergate, 18 NOVA L. REV. 1775, 1778 (1994);
384. Randall K. Miller, Congressional Inquests: Suffocating the Constitutional Prerogative of Executive Privilege, 81 MINN. L. REV. 631, 650-52 (1997).
385. See Memorandum from Jay S. Bybee, Assistant Att'y Gen., Office of Legal Counsel, U.S. Dep't of Justice, to Alberto Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogations Under 18 U.S.C. §§ 2340-2340A, at 15 n.8, 19 (Aug. 1, 2002), available at http://www.slate.com/features/whatistorture/pdfs/020801.pdf.
386. Some might argue that because the extreme prisoner interrogations served to protect against assaults on individual liberty and dignity by terrorists, the advice ultimately respected those values. See id. at 42-46. Yet, respect for individual dignity demands treating each person with a minimal level of basic concern, and would not permit sacrificing that concern to accord greater respect to others' interests.
387. Cf. George Skelton, Response to Governor's 'Hot' Tape Is Too Much, L.A. TIMES, Sept. 11, 2006, at B3 (discussing the uproar over California Governor Schwarzenegger's private comments to his speechwriter stating that "they [Puerto Ricans or Cubans] are all very hot" because "they have ... part of the [B]lack blood in them and part of the Latino blood in them").
388. For an interesting discussion of social science findings indicating that many people hold latent racist assumptions of which they are unaware, see Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1506-14 (2005).
389. See, e.g., Daryl Fears, Civil Rights Leaders Widen Attack on GOP After Lott Exit: Groups Charge Senator's Actions Reflect Party's Agenda, WASH. POST, Dec. 23, 2002, at A2 (public pressure forced Senate Majority Leader Trent Lott's resignation after praising Strom Thurmond, who had advocated racist views);
390. Rong-Gong Lin II, Kramer vs. Kramer Without Kramer: Michael Richards' Accusers Get Their Day in Mock Court as the Comedian Is 'Tried' for His N-word Outburst at an L.A. Comedy Club, L.A. TIMES, Feb. 18, 2007, at B3 (strong public reaction against comedian for use of the term "nigger");
391. Lisa de Moraes, Don Imus Is Punished with Two Weeks of Radio Silence, WASH. POST, Apr. 10, 2007, at C1 (talk show host fired following racist comments about the Rutgers women's basketball team);
392. Skelton, supra note 202, at B3.
393. See Kang, supra note 203, at 1586.
394. See Elster, Strategic Uses, supra note 137, at 250 (emphasis omitted).
395. See id at 244-45.
396. See id. at 250.
397. See Jon Elster, The Market and the Forum: Three Varieties of Political Theory, in FOUNDATIONS OF SOCIAL CHOICE THEORY 103, 113 (Jon Elster & Aanund Hylland eds., 1986).
398. See CLARKE, supra 191, at 30-33.
399. To be clear, my point here is not that off-the-cuff statements, hunches, or contradictory views are generally undesirable. It is instead that such views are not necessarily better views, and in some cases, their consideration leads to worse decisions.
400. See infra Part II.B.2.
401. FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 16 (1982).
402. See id. at 23.
403. See id. at 21-23.
404. See infra notes 217-19.
405. In reviewing the literatures and consulting experts in a variety of fields, including psychology, sociology, political science, economics, small-group decision making, and business/management studies, I found little empirical research focusing directly on the impact of confidentiality on group decision making. In a recent review of the past forty-five years of empirical research on jury deliberations, for instance, not one study, of more than 200 reviewed, examined the impact or significance of confidentiality on jury decision making. See Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 PSYCHOL., PUB. POL'Y, & L. 622, 622-24 (2001) (reviewing variables of numerous jury decision-making studies, none of which discuss confidentiality).
406. A recent study has, however, sought to study the impact of juror anonymity (i.e., nondisclosure of juror names and addresses to the parties or in public records) on decision making. See D. Lynn Hazelwood & John C Brigham, The Effects of Juror Anonymity on Jury Verdicts, 22 L. & HUM. BEHAV. 695, 695-700 (1998).
407. See, e.g., DEAN, supra note 25, at 188;
408. ROZELL, supra note 23, at 13-14.
409. See Marlene E. Turner & Anthony R. Pratkanis, Twenty-Five Years of Groupthink Theory and Research: Lessons from the Evaluation of a Theory, 73 ORG. BEHAV. & HUM. DECISION PROCESSES 105, 106 (1998).
410. See generally IRVING L. JANIS, GROUPTHINK 7-9 (2d ed. 1982) [hereinafter JANIS, GROUPTHINK] (introducing the concept of "groupthink" before analyzing a number of foreign policy "fiascoes");
411. IRVING L. JANIS, VICTIMS OF GROUPTHINK 3-9 (1972) [hereinafter JANIS, VICTIMS] (same).
412. See JANIS, GROUPTHINK, supra note 219, at 9.
413. See Turner & Pratkanis, supra note 219, at 105-06.
414. See JANIS, VICTIMS, supra note 219, at iv (discussing Roosevelt and the failure to prepare for the attack on Pearl Harbor; Truman and the invasion of North Korea; Kennedy and the Bay of Pigs invasion; and Johnson and the escalation of the Vietnam War);
415. Turner & Pratkanis, supra note 219, at 107.
416. Many scholars have theorized about or applied the groupthink model in case studies, but lab-based experimental research provides only varying support for the theory. See James K. Esser, Alive and Well After 25 Years: A Review of Groupthink Research, 73 ORG. BEHAVIOR & HUMAN DECISION PROCESSES 116, 133 (1998);
417. Norbert L. Kerr & R. Scott Tindale, Group Performance and Decision Making, 55 ANN. REV. PSYCHOL. 623, 640 (2004).
418. Some scholars have explained the limited support in part by pointing to the difficulty of reproducing the broad set of groupthink conditions in a single experiment. See Esser, supra at 139;
419. Turner & Pratkanis, supra note 219, at 107-08.
420. Consistent with the groupthink model, the existing research shows that "constructs that typically are seen as positive aspects of groups (cohesiveness, collective efficacy, etc.) do not invariably lead to improved group outcomes." Kerr & Tindale, supra at 640.
421. See supra notes 219-20 and accompanying text. To be clear, Part II.A.3 focuses on how confidentiality exacerbated the tendencies of individuals to conform to internal group norms and become less willing to speak candidly. By contrast, the discussion here recounts how confidentiality contributes to groupthink processes and thereby affects critical thinking. In other words, the point here is not that individuals become unwilling to speak frankly, but instead that the content of their contributions become diminished.
422. Cass R. Sunstein, The Law of Group Polarization, 10 J. POL. PHIL. 175, 176 (2002) [hereinafter Sunstein, Group Polarization];
423. see Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 YALE L.J. 71, 85 (2000) [hereinafter Sunstein, Deliberative Trouble].
424. See Sara M. Baker & Richard E. Petty, Majority and Minority Influence: Source-Position Imbalance as a Determinant of Message Scrutiny, 67 J. PERSONALITY & SOC. PSYCHOL. 5, 5 (1994).
425. In addition, Sunstein points to two factors, collapsing reward and identification into the single category of "social comparison." See Sunstein, Group Polarization, supra note 224, at 179.
426. See Baker & Petty, supra note 225, at 5-6
427. (citing, inter alia, GABRIEL MUGNY & JUAN A. PÉREZ, THE SOCIAL PSYCHOLOGY OF MINORITY INFLUENCE 4 (Vivian Waltz Lamongie trans., 1991);
428. Herbert C. Kelman, Compliance, Identification, and Internalization: Three Processes of Attitude Change, 2 J. CONFLICT RESOL. 51, 53 (1958);
429. John M. Levine & Candice J. Ranelli, Majority Reaction to Shifting and Stable Attitudinal Deviates, 8 EUR. J. SOC. PSYCHOL. 55, 65 (1978);
430. Serge Moscovici, Toward a Theory of Conversion Behavior, in 13 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 209-39 (Leonard Berkowitz ed., 1980)).
431. See Baker & Petty, supra note 225, at 5.
432. See supra notes 224-27 and accompanying text.
433. See Sunstein, Deliberative Trouble, supra note 224, at 74-75.
434. See BOK, supra note 115, at 25-26.
435. See id. at 85-96 (stressing the tendency of homogeneity to exacerbate group polarization, but not focusing on the significance of confidentiality per se).
436. See Andrew Quinn & Barry R. Schlenker, Can Accountability Produce Independence? Goals as Determinants of the Impact of Accountability on Conformity, 28 PERSONALITY & SOC PSYCHOL. BULL. 472, 473 (2002);
437. Philip E. Tetlock et al., Social and Cognitive Strategies for Coping with Accountability: Conformity, Complexity, and Bolstering, 57 J. PERSONALITY & SOC. PSYCHOL. 632, 632-33 (1989);
438. see also Jennifer S. Lerner & Philip E. Tetlock, Accounting for the Effects of Accountability, 125 PSYCHOL. BULL. 255, 257 (1999) [hereinafter Lerner & Tetlock, Accounting] (noting that "simple conformity is not an option" for an individual when the audience's views are unknown);
439. Jennifer S. Lerner & Philip E. Tetlock, Bridging Individual, Interpersonal, and Institutional Approaches to Judgment and Decision Making: The Impact of Accountability on Cognitive Bias, in EMERGING PERSPECTIVES ON JUDGMENT AND DECISION RESEARCH 431, 438 (Sandra L. Schneider & James Shanteau eds., 2003) [hereinafter Lerner & Tetlock, Bridging] (proposing that accountability leads individuals to increase their "cognitive effort").
440. See Tetlock, supra note 232, at 638-39.
441. In some cases, the additional efforts to analyze a problem may hinder, rather than improve, judgment and decision making. As one study found, accountability may motivate individuals to over-interpret meager evidence, or, in other words, to overvalue information irrelevant to a problem. See Philip E. Tetlock & Richard Boettger, Accountability: A Social Magnifier of the Dilution Effect, 57 J. PERS. & SOC. PSYCHOL. 388, 397 (1989).
442. But see Lerner & Tetlock, Bridging, supra note 232, at 438 (finding that an individual's "increased cognitive effort" decreases his or her "susceptibility to a host of common biases" such as oversensitivity to the order of information).
443. See Marceline B. R. Kroon et al., Group Versus Individual Decision Making: Effects of Accountability and Gender on Groupthink, 23 SMALL GROUP RES. 427, 428-29 (1992).
444. See generally Lerner & Tetlock, Accounting, supra note 232 (reviewing research on individual accountability);
445. Lerner & Tetlock, Bridging, supra note 232 (same).
446. A few studies examine the impact of accountability on groups. See, e.g., Dennis D. Stewart et al., Accountability and the Discussion of Unshared, Critical Information in Decision-Making Groups, in 2 GROUP DYNAMICS: THEORY, RESEARCH & PRACTICE 18, 19-20 (Donelson R. Forsyth ed., 1998);
447. Kroon, supra, at 428-29.
448. See Marceline B. R. Kroon et al., Managing Group Decision Making Processes: Individual Versus Collective Accountability and Groupthink, 2 INT'L J. CONFLICT MGMT. 91, 111 (1991).
449. See id. at 105-11.
450. See id. at 100-01.
451. Id. at 101.
452. See id. at 109-11.
453. An earlier study, co-authored by one of the same co-authors of the study discussed above (David van Kreveld), did not find support for the hypothesis that individual accountability would reduce groupthink tendencies more than would collective accountability. See Kroon, supra note 234, at 450.
454. Beyond wishing to know the best alternative, the public has a distinct interest in discovering what information presidential advisors sought and which issues they actually knew or contemplated. In other words, the public has an interest in understanding the President's decisionmaking processes.
455. See Elizabeth Garrett & Adrian Vermeule, Transparency in the Budget Process 10 (Univ. S. Cal. Ctr. in Law, Econ. & Org., Working Paper No. CO6-2, 2006), available at http://ssrn.com/abstract=877951.
456. Id.
457. See id. at 10, 13-14.
458. Id. at 13.
459. See Diane J. Heith, Staffing the White House Public Opinion Apparatus: 1969-1988, 62 PUB. OPINION Q. 165, 186-87 (1998).
460. See generally DOUGLAS C. FOYLE, COUNTING THE PUBLIC IN: PRESIDENTS, PUBLIC OPINION, AND FOREIGN POLICY (1999) (asserting that both a President's understanding of the proper function public opinion should have on foreign policymaking as well as the decision-making context govern his reaction to public opinion);
461. DIANE J. HEITH, POLLING TO GOVERN: PUBLIC OPINION AND PRESIDENTIAL LEADERSHIP (2004) (arguing that polling affects presidential messages and responses, but often to a lesser degree than the public imagines);
462. LAWRENCE R. JACOBS & ROBERT Y. SHAPIRO, POLITICIANS DON'T PANDER: POLITICAL MANIPULATION AND THE LOSS OF DEMOCRATIC RESPONSIVENESS (2000) (arguing that polls influence efforts to sell policies but not the policies themselves).
463. Cf. supra note 243 and accompanying text.
464. See Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. ECON. & ORG. 132, 138, 144 (1999).
465. See supra Part II.A.1.
466. See supra Part II.A.2.
467. See supra Part II.A.3.
468. See supra Part II.B.1.
469. See supra Part II.B.2.
470. See supra Part II.B.2.
471. See supra Part II.B.2.
472. See, e.g., JANIS, GROUPTHINK, supra note 219, at 132-58 (discussing the Cuban Missile Crisis).
473. See supra note 217.
474. I deliberately avoid using the term "heightened scrutiny" here because I do not mean to suggest a form of review, akin to those in the constitutional equal protection and fundamental rights contexts, that is generally skeptical of the asserted interests. I argue that courts should discern the particularity of the President's interest.
475. See supra Part II.B.
476. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 383-92 (2004).
477. See Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425, 446-55 (1977);
478. United States v. Nixon (Nixon I), 418 U.S. 683, 705-16 (1974).
479. See Nixon II, 433 U.S. at 446-55;
480. Nixon I, 418 U.S. at 705-16.
481. See supra Part I.A.
482. As I make clear below, the differentiation approach's applicability extends beyond litigation contexts. See infra Part III.B.
483. I discuss below an instance where following the differentiation approach would lead to a finding that the President has an especially strong interest in confidentiality. See infra Part III.C.
484. See supra note 89 and accompanying text.
485. See United States v. Nixon (Nixon I), 418 U.S. 683, 711-13 (1974).
486. See Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425, 450-55 (1977).
487. See infra notes 269-84 and accompanying text.
488. The cases that have applied Nixon balancing include In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997),
489. Nixon v. Freeman, 670 F.2d 346 (D.C. Cir. 1982),
490. Dellums v. Powell, 561 F.2d 242 (D.C. Cir. 1977),
491. In re Grand Jury Proceedings, 5 F. Supp. 2d 21 (D.D.C. 1998),
492. affd in part, rev'd in part sub nom. In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998),
493. Dellums v. Powell, 70 F.R.D. 648 (D.D.C. 1976),
494. aff'd in part, rev'd in part, 561 F.2d 242 (D.C. Cir. 1977),
495. and Sun Oil Co. v. United States, 514 F.2d 1020 (Ct. Cl. 1975).
496. See Freeman, 670 F.2d at 347-48, 355-56.
497. See In re Sealed Case, 121 F.3d at 741-61;
498. Dellums, 561 F.2d at 246-48;
499. In re Grand Jury Proceedings, 5 F. Supp. 2d at 25-29;
500. Dellums, 70 F.R.D. at 648-51;
501. Sun Oil Co., 514 F.2d at 1024.
502. See In re Sealed Case, 121 F.3d at 741-61;
503. Dellums, 561 F.2d at 246-48;
504. In re Grand Jury Proceedings, 5 F. Supp. 2d at 25-29;
505. Dellums, 70 F.R.D. at 648-51;
506. Sun Oil Co., 514 F.2d at 1024.
507. Dellums v. Powell, 561 F.2d 242, 247-48 (D.C. Cir. 1977).
508. Sun Oil Co. v. United States, 514 F.2d 1020, 1024 (Ct. Cl. 1975).
509. In holding that the plaintiffs in Dellums had demonstrated a specific need for disclosure sufficient to overcome the President's presumptive privilege, the Dellums court counseled that disclosure ought not be made to the public, but instead "should be restricted to counsel, unless and until the documents are made part of the public trial record." See Dellums, 561 F.2d at 249.
510. The court did not, however, suggest that the availability of that option diminished the strength of the President's confidentiality interest in that case. See id. at 245-48.
511. See, e.g., Memorandum from Janet Reno, Att'y Gen., Re: Assertion of Executive Privilege with Respect to Clemency Decision (Sept. 16, 1999), available at 1999 WL 33490208;
512. Memorandum from Janet Reno, Att'y Gen., Re: Assertion of Executive Privilege for Memorandum to the President Concerning Efforts to Combat Drug Trafficking (Sept. 30, 1996), available at 1996 WL 33680443;
513. Memorandum from Janet Reno, Att'y Gen., Re: Assertion of Executive Privilege for Documents Concerning Conduct of Foreign Affairs with Respect to Haiti (Sept. 20, 1996), available at 1996 WL 34386606;
514. Memorandum from Janet Reno, Att'y Gen., Re: Assertion of Executive Privilege Regarding White House Counsel's Office Documents (May 23, 1996), available at 1996 WL 34386607;
515. Congressional Requests for Confidential Executive Branch Information, 13 Op. Off. Legal Counsel 153, 154-61 (1989);
516. Investigative Authority of the General Accounting Office, 12 Op. Off. Legal Counsel 171, 176-80 (1988);
517. Confidentiality of the Attorney General's Communications in Counseling the President, 6 Op. Off. Legal Counsel 481, 484-90 (1982);
518. Assertion of Executive Privilege in Response to a Congressional Subpoena, 5 Op. Off. Legal Counsel 27, 29-32 (1981).
519. OLC has implicitly acknowledged that the strength of the President's confidentiality interest varies. For example, in concluding that the President could, consistent with Nixon I, assert executive privilege against Congress, OLC reasoned that "[t]he possibility that deliberations will be disclosed to Congress [rather than to a court] is, if anything, more likely to chill internal debate among executive branch advisers."
520. See 13 Op. Off. Legal Counsel at 156. Yet OLC did not suggest that the President's interest in withholding information from Congress, as opposed to the courts, thus deserves more weight under the Nixon balancing analysis.
521. See id. at 156-57.
522. See id. at 157-59,
523. which quotes the D.C. Circuit's opinion in United States v. AT&T, 567 F.2d 121, 127, 130 (D.C. Cir. 1977).
524. See 13 Op. Off. Legal Counsel at 159.
525. See id. (emphasis added).
526. See id.
527. See United States v. Nixon (Nixon I), 418 U.S. 683, 711-13 (1974).
528. See Nixon v. Adm'r of Gen. Servs. (Nixon II), 433 U.S. 425, 450-55 (1977).
529. The differentiation approach is not at odds with the Nixon cases; it simply raises issues that the Nixon cases did not have occasion to decide.
530. See Walker v. Cheney, 230 F. Supp. 2d 51, 55-57 (D.D.C. 2002).
531. See id. at 53-58.
532. See Nixon I, 418 U.S. at 706 (discussing in camera review).
533. Simone Chambers, Behind Closed Doors: Publicity, Secrecy, and the Quality of Deliberation, 12 J. POL. PHIL. 389, 408 (2004).
534. Also, the fewer the parties involved in deliberations, the higher the risk of illegality. Advisors become more likely to suggest unlawful conduct, and the President becomes more inclined to sanction it. However, because there are also strong reasons favoring presidential deliberations involving very few advisors, such as the need for quick decision making or for a close hold of highly sensitive information, there should not be a presumption against small decision-making groups.
535. in some cases, outside scrutiny leads agents to resist consulting a broad range of groups for fear of angering their principals. Along those lines, some officials feel greater freedom to agree to compromise in favor of the public interest and to abandon their supporters' more immediate, parochial interests because of the ability to bargain behind closed doors. See Daniel Naurin, Why Increasing Transparency in the European Union Will Not Make Lobbyists Behave Any Better than They Already Do, Eur. Union Stud. Ass'n 9th Biennial Int'l Conf. (Mar. 31-Apr. 2, 2005) (unpublished manuscript, on file with author), available at http://aei.pitt.edu/3074;
536. David Stasavage, Open-Door or Closed-Door? Transparency in Domestic and International Bargaining, 58 INT'L ORG. 667, 672-73 (2004);
537. cf. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 114-15 (1996) (noting that secrecy can enable officials to take risks in developing policy and thereby encourages deliberation).
538. In the NEPDG case, however, the task force was billed as developing an energy policy for the nation. See Walker, 230 F. Supp. 2d at 54.
539. Also, laws requiring the executive branch to develop national energy policy directed the Executive to consult a broad range of interest groups. See Plaintiff's Consolidated Reply in Support of His Motion for Summary Judgment and Opposition to Defendant's Motion to Dismiss at 64,
540. Walker, 230 F. Supp. 2d. 51 (No. 1:01cv00340) (citing 42 U.S.C. § 7321(a), (d) (2000)).
541. Though the President did not invoke those particular laws when creating the NEPDG, such laws would have reinforced public pressure on the task force to consult with a variety of interest groups. Id. Hence, in this case, it is reasonable to conclude that public scrutiny would have led the NEPDG to consult with a broader, rather than narrower, range of interests and perspectives.
542. See Nixon I, 418 U.S. 683, 706 (1974).
543. See In re Sealed Case, 121 F.3d 729, 744-45 (D.C. Cir. 1997);
544. Dellums v. Powell, 642 F.2d 1351, 1363-64 (D.C. Cir. 1980).
545. See In re Sealed Case, 121 F.3d at 745.
546. The differentiation approach does not presuppose that courts ought to hear disputes over access to information concerning presidential deliberations. As I explain below, even if courts refrained from hearing such cases, the differentiation approach would remain relevant, as its applicability extends beyond litigation contexts.
547. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 385, 389 (2004);
548. see also supra pp. 249-50 (analyzing separation of powers in relation to the President's confidentiality interest).
549. See supra note 92 and accompanying text.
550. See generally In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1169 (D.C. Cir. 2006) (Tatel, J., concurring) (discussing courts' regular reliance on commonsense assumptions to assess the chilling effect in a variety of privilege-related contexts).
551. See supra note 217.
552. See, e.g., United States v. Nixon (Nixon I), 418 U.S. 683, 703 (1974).
553. See Kitrosser, supra note 23, at 510;
554. Kramer & Marcuse, supra note 23, at 624;
555. Prakash, supra note 23, at 1145;
556. Rozell, supra note 9, at 1070-71.
557. See Nixon I, 418 U.S. at 711.
558. In light of the varying state constitutions and local charters, I do not take a position on whether the differentiation approach ought also to apply to chief executives at other governmental levels.
559. See, e.g., Johnsen, supra note 23, at 1139, 1140
560. (citing Executive Privilege-Secrecy in Government: Hearings Before the Subcomm. on International Relations of the S. Comm. on Government Operations, 94th Cong. 125 (1975)
561. (statement of Antonin Scalia, Assistant Att'y Gen., Office of Legal Counsel));
562. Rozell, supra note 9, at 1101-02.
563. The differentiation approach is consistent in spirit with the constitutionally required accommodation process set forth by the D.C. Circuit in United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).
564. See supra text accompanying notes 278-81.
565. See sources cited supra note 191. I thank Steve Yeazell for this point.
566. Along similar lines, there are significant differences between official and individual accounts of jury deliberations.
567. See supra note 257 and accompanying text.
568. By contrast, this process would not be the case for decisions that remained confidential.
569. See Brandice Canes-Wrone, A Theory of Presidents' Public Agenda Setting, 13 J. THEORETICAL POL. 183, 201-02 (2001).
570. See, e.g., Adam Frankel, The Value of Debate in the War on Terrorism, THE DAILY PRINCETONIAN, Sept. 24, 2001;
571. Sally Kalson, 9/11 Changes? They're Just Stories, So Far, PITT. POST-GAZETTE, Jan. 6, 2002, at A-I;
572. Kelly Moskal, Bush's Popularity Soars in His 'Defining Moment,' THE LANTERN (Columbus, Ohio), Oct. 11, 2001;
573. Chuck Raasch, Expectations Are High, Future Uncertain, GANNETT NEWS SERVICE, Oct. 6, 2001;
574. Rosemary Roberts, Questioning Bush on 9/11 Not Unpatriotic, NEWS & REC. (Greensboro, N.C.), May 22, 2002, at A15.
575. The privilege is recognized at common law and codified as an exception to the FOIA. See 5 U.S.C. § 552(b)(5) (2000).
576. See Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982) (recognizing the special nature of the President's constitutional office and functions);
577. United' States v. Nixon (Nixon I), 418 U.S. 683, 706, 708 (1974);
578. United States v. Burr, 25 F. Cas. 30, (C.C.D. Va. 1807).
579. Some scholars have questioned the bases for presidential exceptionalism. See, e.g., Moe & Howell, supra note 247, at 136;
580. Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263, 319 (2006).
581. See supra notes 53-55 and accompanying text.
582. See supra notes 53-54 and accompanying text.
583. See, e.g., 15 U.S.C. § 41 (2000) ("Not more than three of the [Federal Trade Commission] Commissioners shall be members of the same political party.");
584. U.S.C. § 78d(a) (2000) (Securities and Exchange Commission);
585. U.S.C. § 154(b)(5) (2000) (Federal Communications Commission).
586. See BRADLEY H. PATTERSON, JR., THE WHITE HOUSE STAFF: INSIDE THE WEST WING AND BEYOND 5 (2000).
587. See, e.g., Cary Coglianese, Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, 46 DUKE L.J. 1255, 1256-57 (1997); Jody
588. Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1, 38-39 (1997).
589. See 5 U.S.C. §§ 553, 556-557 (2000).
590. Administrative Procedure Act, ch. 324, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C).
591. See 5 U.S.C. § 553.
592. Cf. Griffin, supra note 23, at 38
593. (raising similar arguments about the pertinence of Elster's observations on constitution making, see supra notes 136-39 and accompanying text, to executive deliberations, but focusing primarily on the absence of bargaining and compromise in presidential decision making).
594. Some advisors, particularly high-ranking Cabinet-level officials, harbor their own political ambitions. See, e.g., Steven Erlanger, Holbrooke Chosen to Be U.N. Envoy, Senior Officials Say, N.Y. TIMES, June 18, 1998, at Al (mentioning that former U.N. Ambassador Bill Richardson will become Energy Secretary to build an important domestic platform in anticipation of becoming Vice President Al Gore's running mate in the 2000 presidential race);
595. Janet Hook, Congressional Newcomers, but Hardly Neophytes: House and Senate Freshmen Arrive with a Wealth of Experience, Including a Governor and Several Returning to Washington, L.A. TIMES, Nov. 13, 2002, at A20 (noting that Rahm Emmanuel, former Senior Advisor to the President for Policy and Strategy, was elected to Congress);
596. Bill Lambrecht & Tim Poor, Thinking 2000: Ashcroft Considers a Quest for Presidential Nomination, ST. LOUIS POST-DISPATCH, July 30, 1997, at 1A.
597. Also, many political appointee advisors receive their "seat at the table" in part because of the backing or support of particular interest groups. See Lou Cannon, Reagan's Appointments Mess Decried, WASH. POST, Mar. 1, 1981, at Al;
598. Thomas L. Friedman, Behind Appointments, Quiet Warring, N.Y. TIMES, Dec. 13, 1992, at A36;
599. Thomas L. Friedman, Clinton's Cabinet Choices Put Him at Center, Balancing Competing Factions, N.Y. TIMES, Dec. 27, 1992, at A22;
600. Martin Tolchin, Bush Prepares to Share the Fruits of a Victory, N.Y. TIMES, NOV. 11, 1988, at A22.
601. See generally Myers v. United States, 272 U.S. 52 (1926) (holding that the President has the exclusive power to remove certain executive officers).
602. To be clear, I do not mean to suggest here that confidentiality plays little role in the presidential context in reducing the likelihood of puffery. As discussed above, disclosure, and in particular open deliberations, sometimes encourages the President to prefer that his advisors engage in staged or rehearsed discussions. See supra Part II.A.2. My point here instead concerns unsolicited puffery. Whereas the President has the authority to demand that his advisors not engage in one-upmanship, congressional officials cannot as effectively demand that from each other.
603. See supra Part II.B.2.
604. The Supreme Court has struck down several ordinances that required distributors of pamphlets to identify themselves as violating the First Amendment. See, e.g., Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 166-69 (2002);
605. Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995);
606. Talley v. California, 362 U.S. 60, 64-65 (1960).
607. See Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 HASTINGS L.J. 983, 1023-31 (2005) [hereinafter Lee, Persuasion];
608. Gia B. Lee, Addressing Anonymous Messages in Cyberspace, 2 J. COMPUTER-MEDIATED COMM. (1996), http://jcmc.indiana. edu/vol2/issuel/ anon.html.
609. See, e.g., McIntyre, 514 U.S. at 346-47.
610. See supra Part III.A.
611. Cf. Lee, Persuasion, supra note 327, at 1023-31 (explaining why governments, as opposed to private parties, have a weaker interest in speaking anonymously).
612. See Eggen & Kane, supra note 1, at Al.
613. See id.
614. See Dan Eggen & Amy Goldstein, E-Mails Reveal Tumult in Firings and Aftermath, WASH. POST, Mar. 21, 2007, at Al.
615. See Eggen & Kane, supra note 1, at Al.
616. See Michael Abramowitz & Paul Kane, Bush Offers Aides for Hill Interviews: Democrats Probing Firings Chafe at Conditions, WASH. POST, Mar. 21, 2007, at Al.
617. See Eggen & Kane, supra note 1, at Al.
618. See United States v. Nixon (Nixon I), 418 U.S. 683, 709 (1974).
619. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 386 (2004).
620. See id. at 384-85.
621. The standards governing congressional standing are the subject of substantial disagreement. Former Chief Justice Rehnquist and four sitting Justices have suggested at least five different perspectives. See Raines v. Byrd, 521 U.S. 811, 829-30 (1997) (Rehnquist, C.J.);
622. id. at 831-33 (Souter, J., concurring in the judgment);
623. id. at 836 (Stevens, J., dissenting);
624. id. at 839, 843 (Breyer, J., dissenting) (revealing four different perspectives on congressional standing);
625. Morrison v. Olson, 487 U.S. 654, 708-09 (1988) (Scalia, J., dissenting) (suggesting that courts ought not to hear cases between Congress and the Executive).
626. One court and one commentator have suggested that the methods by which Congress issues a subpoena or authorizes suit affects, or ought to affect, respectively, the standing determination. See Walker v. Cheney, 230 F. Supp. 2d 51, 68-69 (D.D.C. 2002);
627. William P. Marshall, The Limits on Congress's Authority to Investigate the President, 2004 U. III. L. REV. 781, 820-21.
628. See Cheney, 542 U.S. at 384-85.
629. See supra Part III.A.
630. See Eggen & Kane, supra note 1, at Al.
631. My point here is not that the reasons underlying personnel decisions of government officials are, or ought to be, generally considered private information. It is instead that, without some assurances of confidentiality, many people will not speak candidly when evaluating others' job performances or fitness for offices.
632. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 382 (2004).
633. I thank Seana Shiffrin for suggesting this point to me.
634. See supra notes 19-22 and accompanying text.
635. See supra note 18 and accompanying text.