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Copyright 2021 Dan Cofran

No current or former president or advisor is absolutely immune to a Congressional subpoena to appear before a committee. They must appear, be sworn and answer questions under oath. Any immunity is qualified. Current and former presidents and advisors may assert presidential executive privilege on a question-by-question basis.

Presidential executive privilege for both current and former presidents and their advisors, however, is very narrow.

First off, presidential executive privilege is limited to communications made as part of a president’s official duties. It does not protect communications that are part of criminal activity or wrongful conduct. Crimes are not part of a president’s official duties. In addition, the privilege does not extend to political campaign activity.

Within those confines, there are two forms of presidential executive privilege.

Presidential communications are limited to a former president’s communications to immediate “in the room” advisors. The communications must have been directly with the president himself or herself and be about matters under his or her official Constitutional duties.

Deliberative Communications are slightly broader and apply to communications among advisors forumulating official government policy for a former president.

Generally, only a current president can assert or waive presidential executive privilege if claimed by a former president or advisor. The privilege belongs to the presidency, not the person.

A subpoenaed former president or advisor must appear before a Congressional committee and assert the privilege on a question-by-question basis. If the former president or advisor refuses to appear or answer questions without a reason such as privilege, the former president or advisor can be held in contempt of Congress. Penalties include fines and incarceration.

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Presidential Communications

Presidential communications are privileged based on the need for candor, even when blunt or harsh, between a president and his or her immediate aides when discussing matters undertaken pursuant to official presidential duties under the Constitution.

Presidential executive privilege is based on the Constitution’s separation of powers principles that recognize a president’s unique status as the single person in government vested with all executive powers of the executive branch. “The buck stops here” is more than a folksy quip. He or she needs frank advice in order to operate the executive branch effectively.

To be privileged, the communications must “reflect presidential decision making and deliberations.” The privilege applies to all decision-making communications, whether made before, during or after a president’s decision. The privilege is not limited to decision-making on important policy issues. All discussions of a president with immediate aides that are part of his or her duties under the Constitution are protected.

The privilege is limited a president and his immediate aides in the White House. They must be aides a president likely sees daily, so close they sometimes are referred to as “elbow distance” aides. In addition, the privilege extends to discussions among the immediate aides themselves if they are for preparing advice for a president’s core, non-delegable decisions he or she makes as a president under the Constitution.

The privilege does not extend to persons in executive branch agencies outside the White House staff, not even to Cabinet members or their staffs. They’re outside “elbow” range. The privilege can also extend to information solicited or received by immediate advisors from their staffs or subordinates if those persons have “broad and significant responsibility for investigating and formulating advice to be given to the President,” sometimes measured as their “operational proximity” to the President.

The presidential communications privilege is not absolute. It is qualified, meaning the discussions are presumed to be privileged, but are subject to being overcome by Congress’ showing a real need, e.g., it has no other source for the information regarding alleged wrongdoing. If the matter ends up in court, courts evaluate need on a case-by-case basis. They consider factors such as relevance and the availability of other evidence. The privilege disappears altogether if there is reason to believe the information will shed light on governmental misconduct or malfeasance.

A current or former president’s generalized assertions of a need for confidentiality are insufficient to outweigh a demonstrated, specific need for evidence, at least in criminal and serious civil trial proceedings. Courts will “weigh the public interest protected by the privilege against those public interests that would be served by public disclosure.” This is done on a case-by-case basis. Judges frequently will review the information in camera (in private without attorneys present) to weigh the competing interests.

The privilege does not extend to crime, fraud and government misconduct, all by definition not part of a president’s “performance of official duties.” However, the Supreme Court has observed, at least in criminal cases, that while not intended to shield governmental misconduct, the showing of need in the balancing process turns on the extent to which the evidence sought is “necessary for a government institution to fulfill its responsibilities, not the type of conduct the evidence may reveal.”

While not a matter of privilege, Presidents have argued that subpoenas seeking presidential communications must relate to Congress’ legislative responsibilities, not its parallel oversight responsibilities. Courts have uniformly rejected this argument. Congress’ oversight powers to make sure its laws are being followed are as broad as its legislative powers under the Constitution.

Deliberative Communications

The second privilege is for deliberative communications. This is similar to the presidential communications privilege but it is broader. It is not not limited to a president and immediate aides. The president does not need to be in the room. It applies to executive branch officials generally and includes “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

Like the presidential communications privilege, the deliberations privilege is recognized in order allow the frank exchange of ideas among government officials during the policy formulation process. Similarly, it is a presumed privilege, overcome by Congress’ showoing a true need for the information in the public’s interest.

To be protected, the information must be internal, pre-decisional and deliberative. Purely factual information is not protected. Post-decision information simply explaining a decision already made is not protected. The deliberative communications privilege goes further down the hierarchy of government employees than the presidential communications privilege. The deliberations do not need to be in response to a presidential request for advice.

Scope

Scope. The scope of both privileges is limited to communications made as part of a president’s performing his or her official duties under the Constitution. This isn’t really an exception; the privilege doesn’t even apply in the first place. Accordingly, a threshold question must always be asked if a communication is even part of a president’s official duties under the Constitution.

Exceptions

Waiver. Both the presidential communications and the deliberative discussion privileges can be waived by the President. Waiver is the voluntary relinquishment of a known right or privilege. In the context of presidential communications, courts may be reluctant to find a waiver in light of the importance of a high national office. This is especially the case for communications about national defense and foreign relations.

While the definition is easy to recite, proof of a waiver is difficult in the absence of a clear, written waiver. Instead, waiver generally is implied and must be proven by facts, frequently by a party’s conduct as opposed to his or her direct statements. For example, if a party provides one or more privileged documents to a third party, this disclosure may operate as a waiver as to all documents on the same subject. Depending the facts, it may merely be an inadvertent disclosure. This would not be a waiver because it would not be voluntary.

A president’s discussions with an immediate aide about his or her private business matters or re-election campaign are not privileged. The latter can get ambiguous because some immediate aides wear “two hats” as White House aides and as former or current campaign officials.

Crime and Fraud. Presidential executive privilege does not extend to crime, fraud and government misconduct, all by definition not part of a president’s “performance of official duties.” However, the Supreme Court has observed, at least in criminal cases, that while not intended to shield governmental misconduct, the showing of need in the balancing process turns on the extent to which the evidence sought is “necessary for a government institution to fulfill its responsibilities, not the type of conduct the evidence may reveal.”

Refusal To Obey Subpoena

A subpoenaed president or advisor can’t refuse to appear before a Congressional committee. He or she must still appear before the committee, be sworn and claim presidential executive executive privilege on a question-by-question basis, just like a defendant would do claiming the Fifth Amendment in a trial.

If a president or an advisor fails to appear or, when questioned fails establish presidential executive privilege or another defense, the House or Senate has three remedies.

First, it can refer the matter to the Department of Justice for criminal prosecution in federal court for contempt of Congress under a federal statute, including up to one year in prison and a fine up to $100,000 upon conviction.

Second, if the Department of Justice fails to act (as was the case during the Trump administdration), the House or Senate file file a contempt of Congress civil action in federal court for civil damages, e.g., $10,000 a day.

Third, the House or Senate theoretically (it’s a disputed theory) could use its “inherent contempt power” to charge and try the advisor in the House or Senate for contempt of Congress and, if guilty, detain the advisor in a place of its choosing.

Who Decides?

Most legal scholars agree that only the current president can exercise or waive presidential executive privilege regarding a former president or former advisors. While there is one Supreme Court decision from 1977 recognizing that a former president can assert executive privilege, it does not address whether a former president has can unilaterially exercise the privilege without authority from the current president.

Newly elected presidential administrations by executive order have set their own presidential executive privilege policies to govern during their terms, including under what circumstances and standards he or she will review requests to assert or waive executive privilege for former presidents and their advisors. President Biden has both asserted and waived the privilege regarding prior presidents, but it is not clear if he used a formal executive order. Former presidents George W. Bush and Barak Obama did formal executive orders for this. Former president Trump apparently did not.

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© 2021, Dan Cofran. All rights reserved.