Executive privilege, Congress’ subpoena power, and the courts: A brief overview of a complex topic

As much as it is discussed and debated, especially lately, there is remarkably little case law concerning “executive privilege”—the idea that there are at least some internal executive branch communications that are shielded against compelled disclosure. The Supreme Court has decided exactly one case involving the privilege, and even that decision—in the Watergate tapes case, United States v. Nixon—raised as many questions as it answered. One reason courts have historically had so little to say about the privilege is because, as the Congressional Research Service explained in 2014, “[t]he vast majority of these disputes are resolved through political negotiation and accommodation.” Most privilege claims arise in disputes between Congress and the executive branch, and most of the time, the involved parties are able to reach some kind of compromise—or the relevant administration and/or Congress ends—before the dispute is conclusively settled by the courts. That’s why the most voluminous discussions of executive privilege have come in memoranda by the Justice Department’s Office of Legal Counsel—rather than judicial decisions.

But “political negotiation and accommodation” have not exactly characterized the relationship between the Trump administration and the House of Representatives over the past nine months. As a growing list of witnesses have refused to appear before Congress or turn over requested documents, the House has issued a steadily increasing number of subpoenas, which has in turn provoked litigation over the scope of Congress’ subpoena power and, in some circumstances, whether and to what extent executive privilege provides a defense even against duly issued subpoenas. Last Friday, a divided panel of the U.S. Court of Appeals for the D.C. Circuit decided the first of these disputes, holding that President Donald Trump could not block one of his accounting firms from complying with a subpoena for financial records in the firm’s possession because the subpoena was within Congress’ authority to issue. And that ruling came on the heels of an eye-opening letter sent last Tuesday by White House Counsel Pat Cipollone to House Speaker Nancy Pelosi and three House committee chairs, suggesting that the White House will not comply with any information requests related to a potential impeachment inquiry.

For now, at least, these disputes are pitched at a categorical level. If and when courts reach specific claims of executive privilege, they’ll find some clarity, but also a series of open questions, in the relevant case law. The following post tries to clarify what’s been settled and what hasn’t.

1. The Supreme Court and executive privilege

As the 2014 CRS study explained, “the Supreme Court has never addressed executive privilege in the face of a congressional demand for information.” Instead, the case in which the court first recognized such a privilege—Nixon—arose from a subpoena issued by Special Prosecutor Leon Jaworski as part of his investigation into the Watergate break-in. But the court’s 8-0 ruling in Nixon nevertheless provides three important benchmarks for executive privilege vis-à-vis Congress today.

First, emphasizing “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties,” the Nixon court traced executive privilege not to the common law, but to Article II of the Constitution. As Chief Justice Warren Burger wrote, “[w]hatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art[icle] II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties.” In other words, “the protection of the confidentiality of Presidential communications has … constitutional underpinnings,” meaning that the privilege cannot be abrogated by statute. Indeed, even though President Richard Nixon ultimately lost before the court, this part of the court’s decision was a significant (and, given the result, unnecessary) win for the presidency.

Second, the Nixon court rejected the president’s claim that such a privilege is absolute, emphasizing that “the impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art[icle] III.” Instead, the court held that the executive privilege protected by Article II is a qualified privilege, and concluded that “it is necessary to resolve [the] competing interests” between executive privilege and the role of the courts “in a manner that preserves the essential functions of each branch.”

Third, Nixon held that the president’s interest in the confidentiality of his own communications, as memorialized in the tapes sought by the subpoena, was outweighed by “our historic commitment to the rule of law.” In Nixon, specifically, “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” And as the court would explain three years later in another case involving Nixon, the privilege recognized in the earlier 1974 Nixon ruling “is limited to communications ‘in performance of (a President’s) responsibilities … of his office,’ and made ‘in the process of shaping policies and making decisions.’”

2. The D.C. Circuit’s major rulings: Espy and Judicial Watch

Although the Supreme Court has not considered the scope of executive privilege since the 1970’s, the D.C. Circuit has ruled on the issue several times. Two especially instructive decisions are the 1997 decision in In re Sealed Case (known to posterity as the Espy ruling); and the 2004 ruling in Judicial Watch v. U.S. Department of Justice.

Espy concerns a grand jury subpoena for White House documents that arose out of a criminal investigation into former Secretary of Agriculture Mike Espy. In siding largely, but not entirely, with the White House, the D.C. Circuit clarified several features about executive privilege. First, as Judge Patricia Wald explained for the unanimous three-judge panel, executive privilege is, in fact, two different privileges: the “presidential communications privilege” recognized by the Supreme Court in Nixon, and a more general “deliberative process privilege,” derived from the common law. As the court explained, the latter privilege covers most internal decisionmaking within the executive branch, but is far easier to overcome. The former privilege, in contrast, applies only to “direct decisionmaking by the President,” and is far harder to overcome—requiring a greater showing of need by the requesting party, along with the unavailability of other mechanisms for obtaining similar evidence.

Espy also clarified that “communications made by presidential advisers in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President.” To that end, “[t]he privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser’s staff, since in many instances advisers must rely on their staff to investigate an issue and formulate the advice to be given to the President.” But Espy also stressed that “the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President’s decisionmaking process is adequately protected.” Thus, “the privilege should not extend to staff outside the White House in executive branch agencies.” Instead, “the privilege should apply only to communications authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate,” and only when the communications are specifically related to advice to the President “on official government matters.” As the court concluded, “[t]he presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.”

Seven years later, a different D.C. Circuit panel further sharpened Espy’s analysis in Judicial Watch, a Freedom of Information Act suit seeking disclosure of DOJ documents relating to pardon applications and pardon grants. The government asserted both the presidential communications privilege and the deliberative process privilege as grounds for withholding disclosure under FOIA. But the court of appeals rejected the argument that the documents were protected by the presidential communications privilege. As Judge Judith Rogers wrote for a divided panel, even though the materials related to a “quintessential and non-delegable Presidential power”—the power to pardon—“internal agency documents that are not ‘solicited and received’ by the President or his Office are instead protected against disclosure, if at all, by the deliberative process privilege.” Although Espy had, for the first time, expanded the presidential communications privilege to encompass communications not directly involving the president, Judicial Watch stressed the narrowness of that extension: “[W]hile ‘communications authored or solicited and received’ by immediate White House advisors in the Office of the President could qualify under the privilege, communications of staff outside the White House in executive branch agencies that were not solicited and received by such White House advisors could not.”

Between them, Espy and Judicial Watch yield several conclusions about the scope of the presidential communications privilege under D.C. Circuit case law. First, the privilege may be asserted even as to communications in which the president is not personally involved. Second, the communications must nevertheless relate to “official government matters” calling for “direct decisionmaking by the President.” Third, at most, the privilege can only be claimed by senior White House advisers (and their immediate staffers). Fourth, and most importantly, the scope of the privilege is to be construed as “narrowly” as is consistent with the confidentiality of the president’s communications.

3. Judge John Bates’ ruling in Miers

Although district court decisions do not have the same precedential force as rulings by the Supreme Court and courts of appeals, one ruling from the U.S. District Court for the District of Columbia subsequent to the D.C. Circuit’s Judicial Watch decision may provide further insight into the scope of executive privilege today. In House Committee on the Judiciary v. Miers, Judge John Bates held that neither current nor former senior advisers to the president are absolutely immune from compelled congressional process—rejecting a claim that “executive privilege” protected the White House chief of staff or the former White House counsel from compliance with otherwise valid congressional subpoenas. In the process, Bates rejected the White House’s argument that the Supreme Court’s 1974 Nixon decision was limited to criminal subpoenas:

Congress’s power of inquiry is as broad as its power to legislate and lies at the very heart of Congress’s constitutional role. Indeed, the former is necessary to the proper exercise of the latter: according to the Supreme Court, the ability to compel testimony is “necessary to the effective functioning of courts and legislatures.” Thus, Congress’s use of (and need for vindication of) its subpoena power in this case is no less legitimate or important than was the grand jury’s in United States v. Nixon. Both involve core functions of a co-equal branch of the federal government, and for the reasons identified in Nixon, the President may only be entitled to a presumptive, rather than an absolute, privilege here. And it is certainly the case that if the President is entitled only to a presumptive privilege, his close advisors cannot hold the superior card of absolute immunity.

The district court did not reach the merits of the privilege claim in Miers. And the government’s appeal was voluntarily dismissed after the parties settled. But Bates’ ruling stands as the only decision to date that expressly rejects an effort to distinguish the Nixon analysis as not applying to congressional subpoenas, and it rejects the argument that current or former senior White House advisors enjoy absolute testimonial immunity vis-à-vis Congress. If other courts follow Bates’ lead, that would have significant ramifications for executive privilege claims against Congress going forward. Much remains unanswered by the courts, but the guidance from Espy, Judicial Watch and Miers should go a long way toward separating colorable privilege claims from those that are patently meritless.

4. Lessons for the future

In its 1977 ruling in United States v. AT&T Co., the D.C. Circuit refused to resolve a dispute between the DOJ and the House of Representatives arising out of a subpoena the House had issued to a private company for records that DOJ claimed were protected by executive privilege. As Judge Harold Leventhal wrote:

The framers … relied, we believe, on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system. Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather, 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. This aspect of our constitutional scheme avoids the mischief of polarization of disputes.

For better or worse, our contemporary politics are beset with “the mischief of polarization of disputes.” And as the D.C. Circuit suggested in AT&T Co., the burden will eventually fall upon the courts to settle these disputes if, as seems increasingly likely, the political process cannot. However the courts ultimately resolve these cases, we should all bemoan the demise of the “spirit of dynamic compromise.” It remains to be seen whether the courts will move quickly enough to prevent the current disputes from being mooted by the next election, which will return a new House of Representatives regardless of the results of the presidential election.