What Principle Have Presidents Applied to Keep White House Communications Confidential?
AP Photo/Stephan Savoia
Attorney General Eric Holder speaks in Boston on June 26 while a vote loomed to hold him in contempt of Congress for withholding records of Operation Fast and Furious.
President Barack Obama'southward recent assertion of executive privilege in the investigation into Operation Fast and Furious highlights the difficulty journalists tin can face when invocation of the centuries-old doctrine prevents the disclosure of information necessary to finer gather and report news nearly important authorities action.
"Any obstruction to obtaining official regime records creates enormous resource and time problems for journalists," said Dennis Wagner, border reporter and investigative journalist for The (Phoenix) Arizona Republic and USA TODAY. "If y'all don't have the official record, your job is to obtain the data by other means — inquiry, whistleblowers and other sources. Those efforts delay and in some cases stymie the public's correct to know what the U.S. regime is doing."
Executive privilege, a legal doctrine recognized more than 200 years ago, allows presidents to defy requests past members of the legislative and judicial branches for information the administration deems sensitive. The privilege ensures that the president receives aboveboard communication from aides without fear of intrusion by Congress or the courts.
Although the privilege is not explicitly mentioned in the Constitution, the U.Southward. Supreme Courtroom first establish in the 1974 Watergate case, U.s. v. Nixon, a constitutional footing for the doctrine in "the supremacy of each co-operative within its own assigned surface area of constitutional duties" and in the separation of powers principle. A similar provision exists in the federal Freedom of Data Act Exemption 5 and permits an executive agency to withhold from disclosure certain documents on which executive officials rely.
The privilege was starting time used by George Washington, who said that the president is justified in withholding information just when doing and then is in the service of the public interest and not an attempt to protect the political interests of the president and his administration. Withal, presidents have not always followed that standard, and their exclamation of a broader privilege has impeded the complimentary flow of information nigh matters of pregnant interest and concern to the public.
When a president invokes executive privilege, "it may exist among the most hard walls to penetrate because the number of potential leakers with access to White Firm documents is express and closely monitored," said Wagner, who has covered the Fast and Furious investigation. "In some instances, I've only been prevented from reporting on an of import upshot because the blockade worked."
Operation Fast and Furious
First in October 2009, the U.South. Department of Justice, led by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, undertook an operation that allegedly allowed nigh ii,000 weapons to period from legal U.Southward. gun dealers to Mexican drug cartels as function of a long-term gun trafficking investigation. In Dec 2010, two of these weapons were found at a site nearly the U.S.-Mexico edge where U.S. Border Patrol Agent Brian Terry was fatally shot.
As part of an investigation into the operation, the Firm of Representatives Committee on Oversight and Government Reform subpoenaed in March 2011 all ATF and Justice Section communications and documents referring or related to Operation Fast and Furious. The Justice Department released about seven,600 pages of documents but did non turn over records relating to the agency'south response to the fallout of the operation. The committee'southward dissatisfaction with the response prompted it to schedule a vote to hold Attorney General Eric Holder in contempt of Congress. On the forenoon of the June vote, Obama invoked executive privilege over the disputed documents, marker the beginning such assertion of his presidency.
Minutes after the antipathy vote, Holder characterized it as "the regrettable culmination of what became a misguided and politically motivated investigation during an election year." The adjacent day, the Justice Department announced that it would not prosecute Holder for failing to fully comply with the committee's amendment.
The House Committee on Oversight and Government Reform responded with a lawsuit confronting Holder, request a federal court to compel him to produce the documents. Last month, the Justice Department moved to dismiss the accommodate, arguing that courts historically have declined to resolve disputes betwixt Congress and the president, instead leaving the branches to negotiate and reach an accommodation.
Obama claims that the documents and email letters at issue detail internal deliberations after news of the operation became public. While the Justice Department possessed the information, President Obama never actually saw it. Withal, that fact alone does non necessarily defeat his privilege claim because its successful invocation demand not literally involve the president, said Stephen Vladeck, American University law professor.
"The privilege attaches to the function, not the person," Vladeck said. "It is about internal confidential communications within the executive branch. That's why information technology'southward called executive privilege and not presidential privilege."
Every bit an example, Vladeck cites Cheney v. U.Due south. District Court, a 2004 U.South. Supreme Court case in which Vice President Dick Cheney challenged a lower courtroom's ruling ordering Cheney to disembalm certain records that would reveal how his National Free energy Policy Development Group came up with its recommendations. The Supreme Court held that Cheney had the option — though he was not required — to invoke executive privilege fifty-fifty though President George Westward. Bush had non seen the documents in dispute.
"There was no allegation that President Bush was directly involved in those materials, but information technology was still internal executive branch communications," Vladeck said. "That the president does non see the documents is non dispositive of an executive privilege claim."
Expanding the privilege
Although use of the executive privilege past a vice president seemingly comports with its original intent, open government advocates said they are concerned by recent presidential expansions of the scope of the privilege.
"Executive privilege is to the president and his immediate circle," said Chris Farrell, managing director of research and investigation for Judicial Scout. "It's non to every person in the executive that could peradventure be carrying out an gild of the president."
Judicial Sentry has filed a lawsuit seeking to forcefulness the disclosure of the disputed Performance Fast and Furious records. It besides filed a lawsuit to obtain documents near the pardon President Bill Clinton granted in 2001 to Marc Rich, a wealthy financier who fled from the United States to Switzerland soon earlier beingness charged with multiple counts of fraud, racketeering and taxation evasion. In response to the adapt, incoming President Bush invoked executive privilege.
"President Bush argued for the nearly broad interpretation possible of the long arms of executive privilege," Farrell said.
Recent administrations have attempted to expand the telescopic of the privilege, mainly through broadening the notion of deliberative process protections, according to an August Congressional Research Service written report on presidential claims of executive privilege. Historically, executive privilege applied to the president'south confidential communications with close directorate, a protection known every bit the presidential communications privilege. The deliberative process privilege was developed under FOIA and permits agencies to withhold from disclosure pre-decisional advice, opinions and recommendations that are part of their decision-making procedure. Over fourth dimension, the executive branch has blended these ii privileges together under executive privilege to claim that the protection extends to any policy deliberations or communications within the executive branch in which the president may have a confidentiality interest.
Obama has indeed relied on the deliberative process privilege to withhold documents in the Operation Fast and Furious investigation. In a alphabetic character to Obama asking him to invoke executive privilege, Holder explained that presidents repeatedly have invoked the privilege to protect confidential executive branch deliberative materials from congressional subpoenas, stating that "it is well established that the doctrine of executive privilege . . . encompasses Executive Branch deliberative communications." Holder did not mention any stardom between the deliberative process and presidential communications privileges.
Presidents also attempt to aggrandize executive privilege through the utilize of various procedures for assessing requests for information that may be protected, co-ordinate to the CRS report.
The Clinton administration, for example, attempted to expand the privilege by centralizing scrutiny and control of all potential claims of executive privilege with the White House Counsel's Office. In other words, Clinton established the Counsel'southward Office as a central clearinghouse for such claims, requiring all bureau heads to direct notify the function when Congress requested whatsoever information that could be subject to protection. White House counsel then would seek an adaptation and if unsuccessful, would consult the attorney general about whether executive privilege should exist raised. The president so would brand the terminal decision to invoke executive privilege or, in many instances, straight his advisers to practice so.
Evolution of the privilege
It wasn't until 1974, when President Richard Nixon asserted executive privilege to prevent the release of the Watergate tapes, that the doctrine was formally tested in the U.S. Supreme Courtroom.
In United States five. Nixon ("Nixon I"), which involved a judicial trial amendment issued to the president at the request of the Watergate special prosecutor, the Supreme Courtroom acknowledged that a president's communications with his shut advisers is "presumptively privileged" but rejected Nixon's assertion that the privilege is absolute. Rather, courts must balance the competing interests at pale, weighing the president's general need for confidentiality against, in this case, the judiciary'due south need for testify in a criminal proceeding, the Court held.
"The Court maintained that executive privilege, like other governmental powers in a separated system, must exist subject to a balancing examination — the need for information had to outweigh whatever presidential claim to secrecy," said Mark J. Rozell, a professor of public policy at George Stonemason University and author of "Executive Privilege: Presidential Ability, Secrecy and Accountability."
The Supreme Court weighed in on the issue once again in 1977 when it considered Nixon'south challenge to a federal statute that gave custody of presidential records to an official who would screen them for personal and individual materials, which would be returned to Nixon, and preserve the balance for historical and government purposes. In rejecting Nixon's claiming to the act, the Court in Nixon 5. Administrator of General Services ("Nixon II") reiterated the property in its earlier Nixon case that "the privilege is limited to communications in performance of a president's responsibilities of his office and fabricated in the process of shaping policies and making decisions." The Court also found that there was a "substantial public interest" in preserving these materials and then that Congress, every bit part of its "broad investigative power," could examine them to empathize the events that led to Nixon's resignation.
Since then, a number of federal court decisions have established parameters around the executive privilege doctrine, namely as information technology relates to the individuals and type of documents covered by the privilege. In the 1997 case In re Sealed Case ("Espy"), which involved a amendment in the k jury investigation into improprieties by then Agriculture Secretary Mike Espy, the U.South. Court of Appeals in Washington (D.C. Cir.) restricted the scope of the privilege to White House staff that take "operational proximity" to directly presidential decision making. Thus, the ruling confined the extent of the privilege to the president and his firsthand White House advisers only.
In Judicial Watch v. Department of Justice, the 2004 example involving Judicial Watch'due south request for documents related to Clinton's pardon of Marc Rich, the D.C. Circuit applied the principles it announced in Espy. The court found that the deputy attorney general and pardon attorney were likewise removed from the president and his senior advisers to authorize for protection under the privilege. An organizational, rather than a functional, test should be used to evaluate these claims because the latter could significantly expand the scope of the privilege, the court ended.
Four years after, the D.C. Excursion provided additional guidance about the types of records that qualify for protection under the doctrine, holding that executive privilege applies only to documents or communications that "directly involve the President" or that were "solicited and received" by White Business firm advisers. The court in Loving v. Section of Defense held that the privilege protected a memorandum prepared for the president past Department of Defense and Army officials regarding an Army private's death sentence because the requested information "directly involved" the president. In so holding, however, the courtroom clarified that the president need not "solicit and receive" the communications himself in guild to successfully invoke the privilege. Rather, documents that the president only views qualify every bit those that "directly involve" the president, the court ruled.
Espy, Judicial Spotter and Loving addressed the nature and telescopic of the privilege in the context of judicial and FOIA requests for information from the executive branch. Courts take been reluctant to intervene in like disputes between Congress and the president. In a pair of cases addressing congressional demands for executive data — United States five. AT&T and U.s.a. five. House of Representatives — the D.C. Excursion and D.C. federal trial court respectively declined to resolve the disputes, noting that they should not arbitrate until the parties had exhausted all possibilities for settlement.
Because of this judicial unwillingness to arbitrate absent a showing that the accommodation process is failing, few legislative and executive branch disputes over the confidentiality of information accept reached the courts for resolution. For that reason, at that place is continuing uncertainty as to how courts should analyze those like the one at issue in the Operation Fast and Furious investigation.
Most disputes betwixt the executive and Congress are resolved through political negotiation and accommodation, every bit was the instance in the 2007 dispute between the Bush-league administration and the House Commission on the Judiciary over subpoenas issued to former White House Counsel Harriet Miers and former White Firm Chief of Staff Joshua Bolten related to the controversial firing of ix U.S. attorneys. The committee was investigating allegations that improper, politically retaliatory criteria motivated the dismissals.
The House Judiciary Commission and the executive ultimately reached an accommodation but not before the committee sued in the federal court in Washington, D.C., which issued the simply opinion to this twenty-four hour period specifically addressing executive privilege in the congressional-executive context. The court in Commission on the Judiciary v. Miers applied the balancing test the Supreme Courtroom put forth in its Nixon cases and ruled that the former White House employees had to cooperate with the committee's investigation.
"Withal its best efforts, the Committee has been unable to find the underlying causes of the forced terminations of the U.S. Attorneys," the court said. "The Committee has legitimate reasons to believe that Ms. Miers'southward testimony can remedy that deficiency. At that place is no evidence that the Committee is merely seeking to harass Ms. Miers by calling her to show."
The administration appealed the ruling merely reached an adaptation earlier an appellate court heard the case. Nether the agreement, the executive provided the committee with some of the requested documents, and Miers was permitted to bear witness in a closed but transcribed hearing. Her testimony revealed that so Senior Presidential Adviser Karl Rove and other top officials in the Bush White House were deeply involved in pushing for the ouster of the U.S. attorneys.
Although presidents successfully invoke nearly claims of executive privilege, the assertions sometimes fail, as in the case of Nixon and the Watergate tapes and Clinton in the Monica Lewinsky scandal. Nixon'due south failed exclamation of executive privilege revealed to the public his steps to encompass upwards the Watergate espionage operation. And because Clinton's assertion of the privilege was unsuccessful, many of his close advisers were compelled to testify about their knowledge of the president'south sexual relationship with Lewinsky.
All the same, Rozell notes that a failed assertion of executive privilege depends on how failure is divers.
"On numerous occasions, a president has claimed executive privilege or threatened to do and so and so has backed down later on White House and congressional staffs worked out accommodations," Rozell said. "I would define these every bit instances of the organization working successfully, even though the presidents may accept failed to withhold all information through the apply of executive privilege."
Source: https://www.rcfp.org/journals/fast-furious-and-executive-pr/