Primer on Executive Privilege and the Executive Branch Approach to Congressional Oversight

Over the past two weeks, the nation has been absorbed by congressional testimony that has brought the issue of executive privilege into the spotlight. Former Director of the Federal Bureau of Investigation, James Comey, answered questions regarding his private conversations with President Donald Trump, while Attorney General Jeff Sessions, Director of National Intelligence Dan Coats, and Admiral Michael Rogers each have declined to do so. Questions of executive privilege also hover over outstanding requests for copies of Comey’s memoranda memorializing his conversations with Trump and for tapes of those conversations, if they exist. With the congressional and special counsel investigations into Russian interference in the 2016 election heating up, questions about the scope and application of executive privilege aren’t likely to go away anytime soon.

With that in mind, an overview of executive privilege and how the executive branch approaches it in the context of congressional oversight seems timely.

What Is Executive Privilege and Where Does It Come From?

Executive privilege is the proposition that certain confidential or sensitive communications within the executive branch are constitutionally protected from compelled disclosure to its co-equal branches: Congress and the courts. There is no mention of executive privilege in the Constitution, and the contours of any executive privilege are contested, with the executive branch, courts, and Congress each taking divergent positions that favor their respective constitutional roles. The issue first emerged during the early days of the Republic: In 1982, the Office of Legal Counsel (OLC) published a compendium of historical examples of executive branch assertions of executive privilege in response to congressional requests dating back to 1792.

For most of our country’s history, disputes about congressional access to confidential executive branch information were treated as matters for political resolution between the branches rather than matters to be resolved by courts, even if the law shaped positions in the background. Consequently, there is little case law directly addressing the existence or scope of any constitutionally-based executive privilege.

Like many other things, that all changed with the Watergate crisis in the early 1970s. The change was precipitated by a grand jury subpoena issued to President Nixon at the request of the special prosecutor seeking the production of certain tapes, transcripts, and memoranda relating to certain meetings held by Nixon. In considering enforcement of the subpoena in United States v. Nixon (1974), the Supreme Court recognized a constitutionally-based privilege protecting the confidentiality of conversations between the president and his close advisors. The Court held that, notwithstanding the Constitution’s silence on the issue, executive privilege had constitutional underpinnings and derived from the nature of the president’s constitutional powers and obligations, presumably the vesting of the executive power in the president and the president’s authority and responsibility to ensure that the law is executed faithfully. However, the Court rejected Nixon’s argument that the privilege was absolute and therefore precluded enforcement of the grand jury subpoena. Instead, at least when grounded in the president’s generalized interest in the confidentiality of his communications, the Court viewed the privilege as a qualified one, subject to a balancing of the competing interests and legitimate needs of the respective branches—and ordered the production of the tapes.

What Is the Scope of the Executive Privilege?

Questions and disagreements remain regarding the scope of executive privilege. There is limited case law and divergent and strongly-held views between Congress and the executive branch. But a review of executive branch practice identifies a number of categories of information that the executive branch, at least, believes may be protected by an invocation of the privilege. In the executive branch’s view, each of the categories that follow is a distinct component of the constitutionally-based executive privilege, although they potentially overlap. For its part, Congress disputes that any executive privilege extends to several of these categories.

• Presidential Communications: The core of the executive privilege is confidential communications between the president and his senior advisors. This serves to protect candor in presidential deliberations. As the Supreme Court explained in Nixon, “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” The protection of presidential communications has been understood to include not just advice received but also closely-held directions given by the president, as well as information provided by others to senior presidential advisors in connection with presidential decisionmaking. These are the same confidentiality interests that recent witnesses have invoked in declining to testify about the contents of their conversations with the president.
• Deliberative Process: In the executive branch’s view, the executive privilege does not stop at presidential decisionmaking; rather, any agency deliberation, even those not involving the president or even the White House, requires candor and a robust exchange of ideas by participants uninhibited by concern about potential disclosure. Congress, which doesn’t recognize the common-law deliberative process privilege in responses to its inquiries, disputes that there is a constitutional dimension to the protection of deliberations within federal agencies. Congress took this issue to court in the context of the Department of Justice’s refusal to turn over internal deliberations regarding the Fast & Furious matter. Confronted with this disagreement, the D.C. District Judge Amy Berman Jackson concluded last year that there was a constitutionally-based deliberative process component to the executive privilege.
• Attorney-Client Communications: It is likewise the executive branch’s view that the constitutionally-based executive privilege extends to confidential attorney-client communications, although this view has not been tested in court. Congress takes the view that the attorney-client privilege is simply a common-law privilege and it is the prerogative of Congress to decide on a case-by-case basis whether to recognize it.
• Law Enforcement: As outlined in a 1984 OLC opinion, the executive branch has also long taken the position that the executive privilege extends to information relating to open law enforcement investigations or to sensitive law enforcement techniques, methods, or strategies. This issue could arise if Congress seeks access to active case files from the special counsel’s investigation.
• Military, Diplomatic, and National Security Information: It is also the executive branch’s view that sensitive military, diplomatic, or national security information is protected under an aspect of the executive privilege. Language in the Nixon opinion suggests as much, and this would be consonant with how such information is treated in other context by the courts.

What Is the Process for Asserting Executive Privilege?

Lots of questions have been raised about why certain executive branch officials testifying in recent weeks didn’t answer certain questions. The process through which the executive branch has considered and addressed executive privilege assertions in the past provides important context.

Understanding how the executive branch decides whether to assert executive privilege begins with understanding how the executive branch approaches congressional oversight requests. From the executive branch’s perspective, a request (or subpoena) from Congress seeking information that implicates executive branch confidentiality interests (i.e., interests that could potentially be protected by a formal invocation of executive privilege) kicks off a back-and-forth process under which each branch is constitutionally obligated to negotiate in good faith, articulate with particularity their legitimate institutional needs and interests, and weigh the legitimate needs and interests of the other branch. This is all an effort to reach an accommodation that meets Congress’s legitimate, articulated needs in a way that protects, to the fullest extent possible, important executive branch confidentiality interests. The executive branch refers to this back-and-forth negotiation as the accommodation process; members of Congress who would like immediate access to the information may be more likely to see it as stonewalling, slow-walking, or obstruction.

This approach to accommodation mirrors the D.C. Circuit’s 1977 direction that, when confronting an inter-branch dispute regarding access to information, “each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.” Thus in 1981 the Attorney General described the accommodation process as “not simply an exchange of concessions or a test of political strength” but rather as “an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”

Congress has recently approached its subpoenas for executive branch information from an orientation that more closely resembles civil discovery, taking the position that once a subpoena has been issued, the executive branch has an obligation to respond or assert a valid legal basis for not responding by the return date for the subpoena. By contrast, it is only when this accommodation process has been exhausted and an impasse has been reached that the executive branch typically evaluates whether the president should formally invoke executive privilege. From the executive branch perspective, flat insistence that an agency must comply with a subpoena by the return date reflects Congress’s failure to engage in good faith in the constitutionally-mandated accommodation process, because it does not seek to understand and accommodate a co-equal branch’s legitimate interests. This is important because although in civil discovery, a neutral judge is available to mediate disputes between parties, in disputes between Congress and the executive branch, there typically is no judge — indeed, each branch of government often asserts its constitutional right to be the judge of the matter.

The process by which an assertion is made is governed by a 1982 memorandum issued by President Reagan that remains in effect. The Reagan memo directs the head of an agency that receives a congressional request that raises “a substantial question of executive privilege” to consult with the attorney general and the White House counsel. If negotiations reach a standstill and these officials conclude that the circumstances warrant invocation of executive privilege, they prepare materials for the White House counsel to present the issue to the president for his or her decision. Traditionally, this presentation involves a memorandum from the head of the agency that received the congressional request explaining the information sought by Congress, why the information is privileged, and the efforts that the agency has made to date to accommodate the congressional request; a memorandum from the attorney general evaluating the legal basis for a privilege assertion over the requested information, including whether the qualified privilege might be overcome in the balancing of interests and needs; and the White House counsel’s recommendation to the president. Pending the president’s decision, the agency is directed to ask Congress to hold the request in abeyance, and to explain that this is simply to protect the president’s ability to assert the privilege and does not itself constitute a claim of privilege. Once the president has formally invoked executive privilege, it is the Department of Justice’s position that officials acting based on that assertion of privilege cannot be prosecuted for contempt of Congress.

This framework fits most naturally with requests for documents: the information sought is known and can be reviewed for how it comports with the legal requirements for asserting executive privilege. Because documents are within the agency’s possession and control, the agency generally has control of the timing of any disclosure or decision to invoke privilege. To avoid exposing agency heads to the risk of contempt, the executive branch generally seeks to ensure that any decision regarding whether to invoke the privilege is made before a contempt vote is held.

Fitting this framework to the context of congressional testimony is more complicated, because witnesses do not generally know the questions in advance and it is more difficult to determine whether and when a true impasse in the accommodation process is reached. The approach taken by administration witnesses to recent questions about their conversations with the President highlight this challenge.

The point at which testifying executive branch officials would be exposed to a risk of contempt is most analogous to the point of impasse for document requests. Committee rules typically provide that a witness giving compelled testimony cannot be held in contempt for declining to answer a question unless the committee has rejected the proffered reason and afforded the witness a second opportunity to answer. (This is why Lois Lerner, the official at the center of the Internal Revenue Service's 2013 political targeting controversy, was called back to invoke the Fifth Amendment a second time before the House of Representatives found her in contempt.) Presumably, at least once this stage is reached, there is a clear impasse (and the testifying official would likely want the protection of an assertion of executive privilege before continuing to refuse to answer).

This stage has not been reached for Sessions, Coats, and Rogers. To start, these administration witnesses were likely appearing voluntarily rather than pursuant to a subpoena. It is unclear that a witness voluntarily providing testimony can be held in contempt for simply declining to answer a question. At a minimum, the questioning has not reached a point where the executive branch would traditionally consider invoking executive privilege because it is not clear that the accommodation process has reached an impasse. Although from a congressional perspective the witnesses could readily have anticipated questions about their conversations with the President and the refusal to answer is frustrating, it is not surprising from an executive branch perspective that the witnesses were not prepared to either assert or waive any privileges with respect to the conversations at this early point. There has not been a process of back-and-forth negotiations that the executive branch would normally view as a necessary predicate to deciding whether to formally invoke executive privilege. In preserving the opportunity for the president to determine whether to invoke the privilege, the witnesses’ responses were also consistent with the approach outlined in the Reagan memo, which directs officials to request Congress hold requests in abeyance while the President is evaluating whether to invoke the privilege, and with OLC advice suggesting that the Constitution requires that the president be afforded an adequate opportunity to come to a decision whether to invoke executive privilege.

What Legal and Policy Considerations Must Be Weighed Before Invoking Executive Privilege?

Before recommending to the president that he assert executive privilege, the attorney general and White House counsel must weigh a number of legal and prudential considerations.

First, the Department of Justice must determine that there is a valid legal basis to assert executive privilege over the requested information. This evaluation includes a determination that Congress has not articulated particular, legitimate needs sufficient to override the executive branch’s confidentiality interest in the information. Notably, the D.C. Circuit has set a high bar for when congressional needs override executive branch confidentiality interests, at least with respect to core presidential communications: the committee must show that the information is “demonstrably critical to the fulfillment of the committee’s functions.” Applying this standard, the D.C. Circuit declined to order disclosure of the Nixon tapes to Congress, despite the Supreme Court’s earlier determination that the same tapes had to be disclosed in response to a grand jury subpoena.

Second, the Department of Justice’s longstanding position has been that the privilege cannot be asserted to conceal evidence of wrongdoing or conduct by executive officers that is criminal or unlawful. President Reagan himself followed this policy, declining to assert executive privilege in the Iran/Contra investigations, even making excerpts of his personal diary available to congressional investigators. So the Department must evaluate whether the requested information reveals wrongdoing or criminality by executive branch officials that would preclude an assertion of executive privilege.

Third, the Department must conclude that the privilege protecting the information at issue has not been waived. This requires both a careful evaluation of what information has been acknowledged publicly and resolving complex legal questions about the scope of any potential waiver, which might differ depending on which aspect of the executive privilege is at issue. For instance, disclosure of an attorney-client communication is generally understood to waive all communications on the same subject. Conversely, the executive branch has typically understood the disclosure of information regarding agency deliberations or classified information to waive protection only of the specific information disclosed or officially acknowledged.

Finally, the president confronts a difficult political calculus in deciding whether to invoke executive privilege. Regardless of the specific or institutional issues at stake, as a practical matter, questions regarding whether to invoke executive privilege invariably arise only in matters where asserting the privilege will likely feed inferences that president is seeking to obstruct inquiries or conceal wrongdoing. The president and his advisors must evaluate whether the interests at stake warrant incurring those political costs.

One final note: this analysis primarily addresses the circumstance of congressional requests for executive branch information. In light of the ongoing special counsel investigation, it is important to underscore that the separation of powers analysis and the balancing of needs would likely proceed differently in the context of a criminal or grand jury inquiry than they would in response to a congressional request. The differing outcomes of United States v. Nixon and Senate Select Committee on Presidential Campaign Activities v. Nixon (D.C. Cir. 1974), as well as analysis in later D.C. Circuit case law, underscore criminal and grand jury investigations’ strong interest in and need for access to relevant evidence.