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What is Executive Privilege?

Posted June 16, 2017

By Jonathan A. Karon

The news has been full of speculation about whether President Trump will invoke executive privilege to prevent former or current administration officials from testifying to Congress or the Special Prosecutor. It’s unlikely I’ll ever have a sitting President as one of my clients, but privilege issues arise all the time in my practice. Executive privilege also involves Constitutional Law issues, which I find fascinating (“Con Law” was one of my favorite law school classes). So I decided to go back and read U.S. v. Nixon, the Supreme Court case that explained the nature and extent of executive privilege.

U.S. v. Nixon, 418 U.S. 683 (1974) is the famous Watergate tapes case. The Special Prosecutor subpoenaed recordings made by President Nixon on a secret White House taping system. President Nixon objected to producing the tapes on the basis of “executive privilege” and asked the Court to quash the subpoena. When the District Court refused, he appealed to the U.S. Supreme Court. The Supreme Court ordered the tapes produced but recognized that there was an “executive privilege” based on the need to protect “communications between high Government officials and those who advise and assist them” to protect “candid, objective, and even blunt or harsh opinions in Presidential decisionmaking.”

Justice Burger, writing for seven other justices (Justice Rehnquist, who had worked for Nixon, recused himself) reasoned, “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”

There are two very noteworthy aspects of Justice Burger’s statement. First, it is a “presumptive” privilege. This means that a Court will presume that communications between the President and his advisers are privileged and thus protected from disclosure. But, and this is very important, as will be discussed below, “presumptive” doesn’t mean “always” privileged. Secondly, and this is of more interest to legal wonks like myself, the privilege isn’t expressly written in the Constitution. Instead, the Justices concluded that the government structure set forth in the Constitution, the famous “separation of powers”, implies and requires the creation of an executive privilege.

But the most important part of U.S. v. Nixon is the Supreme Court’s holding that executive privilege is not an absolute privilege. Instead it is what’s known as a qualified privilege. What this means is that other important interests can outweigh a President’s interest in keeping communications with their advisers confidential.

One of these other important interests is “the fair administration of criminal justice”. The Supreme Court held that “when the ground for asserting [executive] privilege as to subpoenaed materials sought for use in a criminal trial is based solely on the [President’s] generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” The Special Prosecutor had made a showing that the tapes were likely to contain relevant and admissible evidence. Accordingly, the Court ordered the tapes produced and Nixon eventually found himself on a one way flight to San Clemente.

The Supreme Court opinion leaves several important questions unanswered. For example, it explicitly states that its decision did not address claims of executive privilege in civil cases or with respect to “congressional demands for information.” It also suggests that the Court would show the “utmost deference” to protect military or diplomatic secrets from disclosure.

So what does this likely mean for the current situation? Just as I am unlikely to have a sitting President as a client, I’m unlikely to have a seat on the Supreme Court. But I’m willing to make some observations.

First, U.S. v Nixon indicates that unless the President claims the communications concern matters of national security, it will be very hard for him to invoke executive privilege to frustrate requests for testimony or evidence from the Special Prosecutor. Second, whether executive privilege could be invoked to frustrate Congressional demands for relevant information is much more unsettled. A good argument could be made that Congress requires the ability to obtain such information to perform its oversight function, but the President could argue that this is an impermissible interference with the powers of the Executive branch. Ultimately, that issue could easily end up in the Supreme Court.

There is one other noteworthy consideration. The privilege belongs to the President and the President can waive it. A valid privilege provides someone, in this case, the President, with the right to withhold information. The President can choose to provide the information or allow government officials to testify. At some point, however, the President does have to choose. Generally witnesses in any proceeding have to either testify or invoke a privilege. In this case, the privilege belongs to the President, so if a specific question might call for privileged information it may be appropriate for a witnessw to refuse to testify initially to give them an opportunity to determine if the President is invoking executive privilege. This is different, however, than refusing to testify because they feel the question is “inappropriate”. That is not a recognized privilege in any proceeding.

An intriguing issue that may arise is whether the President has waived executive privilege. Privileges involve the right to keep certain communications private. Where someone has not taken reasonable steps to keep their communications confidential or has disclosed them, courts usually hold that they have waived any right to invoke the privilege. If the President publicly discusses his conversations with his aides (whether in a statement, a tweet, or an interview) he could be deemed to have waived executive privilege as to those conversations.

The bottom line is that these are interesting times for lawyers and for everyone else as well. The only thing I’m certain of is that the legal issues will get even more interesting.

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