© 2020 Dan Cofran | Posted January 15, 2020

Introduction

The President has claimed both absolute immunity and executive privilege to prevent subpoenaed White House aides from appearing as witnesses before House Congressional committee investigative hearings.

With a looming Senate impeachment trial, continuing Congressional investigations and numerous court proceedings regarding the current administration under way, news reports about executive privilege claims will be common, making this a good time to learn the basics about executive privilege.

Immunity means a subpoenaed witness doesn’t even have to appear before a committee. Courts have uniformly rejected assertions of absolute immunity for Congressional subpoenas and recognized only a qualified immunity, overcome by a Congressional showing of need for the information. Click here to read my article about immunity. Several lawsuits have been making their way through the federal courts this past year challenging the immunity claims. So far, the courts have rejected the President’s absolute immunity claims.

Presidential executive privilege is related to immunity. It applies to a witness who must appear before a committee but objects to specific questions based presidential executive privilege. This is a type of confidentiality privilege limited to a president and his or her immediate aides. If privileged, the aide does not have to answer the question. It’s protected as confidential.

The immunity cases will end up in the Supreme Court if at least four of the nine justices vote to grant certiorari (allow an appeal) to review the matter. If the Supreme Court takes these cases and rejects absolute immunity as the trial and appeal courts have done, these witnesses eventually will have to appear before the Congressional committees.

But here’s the rub. The aides will appear but probably claim presidential executive privilege in response to many committee questions. We’re then looking probably at another year in the courts for rulings on the executive privilege claims, so none of this likely will be resolved before the November 2020 Presidential election.

Nutshell

There are two kinds of executive privilege:

  1. Presidential Communications. This is a narrow privilege. It includes oral and written communications between a president and his or her immediate aides or by his or her immediate aides just among themselves. These communications must be made in performance of a president’s official duties under the Constitution.
  2. Deliberative Communications. These communications are limited to policy formulation deliberations, of not just a president and his or her advisors, but among all federal government decision-makers formulating official federal government policy. These objections are common, for example, in Freedom of Information Act cases.

There are no Supreme Court decisions interpreting these two forms of privilege in the context of Congressional investigations. The reported decisions are in court proceedings, both criminal and civil, as well as non-Congressional, e.g., inspectors general, investigations. There are well-written federal appeals court decisions, however, dealing with executive privilege assertions in a variety of contexts. Their rulings should be instructive.
Presidential Communications

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.

The 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 aides must be a president’s immediate aides in the White House; 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 the President’s core, non-delegable decisions he or she makes as 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. Like immunity, it is qualified, meaning the discussions are presumed to be privileged, but are subject to being overcome by a showing of real need, e.g., no other source for the information regarding alleged wrongdoing. A 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 Communication

The second privilege is for deliberative communications. It is similar to the presidential communications privilege but is broader insofar as being not limited to a president and immediate aides. 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.”

As with 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.
To be protected, the information must be internal, pre-decisional and deliberative. Purely factual information is not protected, nor is post-decision information simply explaining a decision already made. The deliberative communications privilege goes much 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.

It is not an absolute privilege. It is a qualified privilege subject to subject to defeat based upon a showing of actual need weighed against governmental harm in the event of disclosure. Courts do this on a case-by-case basis and consider factors such as relevance, the availability of other evidence and seriousness of the litigation in question. The privilege “disappears altogether” if there is reason to believe the information will shed light on “governmental misconduct” or “malfeasance.”

Exceptions and Non-Privileged Communications

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.
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, does this disclosure operate as a waiver as to all documents on the same subject or as an inadvertent disclosure?
In the context of presidential communications, courts may be reluctant to find a waiver in light of the importance of the President’s high office. This may take the spotlight in the coming months in the pending case of the former White House Counsel. The president claims that immunity and executive privilege shield this lawyer from having to appear before a Congressional committee investigating obstruction of justice. However, the President allowed the FBI to interview this lawyer on the same subject as part of the Mueller investigation. This tee’s up a textbook case for arguing waiver.

Scope and Non-Privileged Communications. 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.
For example, 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. As stated above, because crime, fraud, wrongful conduct and governmental misconduct, by definition, are not part of a president’s duties under the Constitution, communications in furtherance of a crime and similar wrongful conduct are not privileged.
Good luck!

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