Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments

Presidential Claims of Executive Privilege:
History, Law, Practice and Recent Developments
Updated August 21, 2008
Morton Rosenberg
Specialist in American Public Law
American Law Division



Presidential Claims of Executive Privilege: History, Law,
Practice and Recent Developments
Summary
Presidential claims of a right to preserve the confidentiality of information and
documents in the face of legislative demands have figured prominently, though
intermittently, in executive-congressional relations since at least 1792. Few such
interbranch disputes over access to information have reached the courts for
substantive resolution, the vast majority achieving resolution through political
negotiation and accommodation. In fact, it was not until the Watergate-related
lawsuits in the 1970’s seeking access to President Nixon’s tapes that the existence
of a presidential confidentiality privilege was judicially established as a necessary
derivative of the President’s status in our constitutional scheme of separated powers.
Of the nine court decisions involving interbranch or private information access
disputes, four have involved Congress and the Executive. Two of these resulted in
decisions on the merits. The Nixon and post-Watergate cases established the broad
contours of the presidential communications privilege. Under those precedents, the
privilege, which is constitutionally rooted, could be invoked by the President when
asked to produce documents or other materials or information that reflect presidential
decisionmaking and deliberations that he believes should remain confidential. If the
President does so, the materials become presumptively privileged. The privilege,
however, is qualified, not absolute, and can be overcome by an adequate showing of
need. Finally, while reviewing courts have expressed reluctance to balance executive
privilege claims against a congressional demand for information, they have
acknowledged they will do so if the political branches have tried in good faith but
failed to reach an accommodation.
However, until the District of Columbia Circuit’s 1997 ruling in In re Sealed
Case (Espy), and 2004 decision in Judicial Watch v. Department of Justice, these
judicial decisions had left important gaps in the law of presidential privilege. Among
the more significant issues left open included whether the President has to have
actually seen or been familiar with the disputed matter; whether the presidential
privilege encompasses documents and information developed by, or in the possession
of, officers and employees in the departments and agencies of the Executive Branch;
whether the privilege encompasses all communications with respect to which the
President may be interested or is it confined to presidential decisionmaking and, if
so, is it limited to any particular type of presidential decisionmaking; and precisely
what kind of demonstration of need must be shown to justify release of materials that
qualify for the privilege. The unanimous panel in Espy, and the subsequent
reaffirmation of the principles articulated in Espy by Judicial Watch, authoritatively
addressed each of these issues in a manner that may have drastically altered the future
legal playing field in resolving such disputes. A more recent dispute with Congress
involving the removal and replacement of nine United States Attorneys has drawn
formal claims of privilege by President George W. Bush. Those privilege claims have
been challenged in a civil suit brought by the House Judiciary Committee seeking
declaratory and injunctive relief with respect to refusals to appear, to testify, and to
provide documents by two subpoenaed present and former officials. A recent district
court ruling upholding the committee’s challenge may serve to further amplify the
law in this area.



Contents
In troduction ......................................................1
The Watergate Cases...........................................3
Post-Watergate Cases...........................................7
Executive Branch Positions on the Scope of Executive Privilege: Reagan
Through George W. Bush..................................10
Implications and Potential Impact of the Espy and Judicial Watch Rulings
for Future Executive Privilege Disputes.......................17
Recent Developments: George W. Bush Claims of Executive Privilege..24
Concluding Observations...........................................34
Appendix .......................................................37
Presidential Claims of Executive Privilege From the Kennedy
Administration Through the George W. Bush Administration......37
1. Kennedy.............................................37
2. Johnson..............................................37
3. Nixon...............................................37
4. Ford and Carter........................................37
5. Reagan...............................................38
6. Bush, George H. W.....................................38
7. Clinton..............................................38

8. Bush, George W.......................................39



Presidential Claims of Executive Privilege:
History, Law, Practice and Recent
Developments
Introduction
Presidential claims of a right to preserve the confidentiality of information and
documents in the face of legislative demands have figured prominently, though
intermittently, in executive-congressional relations since at least 1792, when
President Washington discussed with his cabinet how to respond to a congressional
inquiry into the military debacle that befell General St. Clair’s expedition.1 Few such
interbranch disputes over access to information have reached the courts for
substantive resolution, the vast majority achieving resolution through political
negotiation and accommodation.2 In fact, it was not until the Watergate-related
lawsuits in the 1970’s seeking access to President Nixon’s tapes that the existence
of a presidential confidentiality privilege was judicially established as a necessary
derivative of the President’s status in the U.S. constitutional scheme of separated
powers. Of the nine court decisions involving interbranch or private information
access disputes,3 four have involved Congress and the Executive.4 Two of these
resulted in decisions on the merits.5 One other case, involving legislation granting
custody of President Nixon’s presidential records to the Administrator of the General
Services Administration, also determined several pertinent executive privilege


1 See Archibald Cox, Executive Privilege, 122 U. of Pa. L. Rev. 1383, 1395-1405 (1979).
See generally, Mark J. Rozelle, Executive Privilege: Presidential Powers, Secrecy, andnd
Accountability, (2 Edition, Revised 2002) (Rozelle); Mark J. Rozelle, Executive Privilege
and Modern Presidents: In Nixon’s Shadow, 83 Minn. L. Rev. 1069 (1999).
2 See, Neil Devins, Congressional-Executive Information Access Disputes: A Modest
Proposal-Do Nothing, 48 Adm. L.Rev. 109 (1996) (Devins).
3 United States v. Nixon, 418 U.S. 683 (1974); Nixon v. Sirica, 487 F.2d 700 (D.C. Cir.

1973); Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir 1974); United States v.


AT&T, 551 F.2d 384 (D.C. Cir. 1976), appeal after remand, 567 F.2d 121 (D.C. Cir. 1977);
United States v. House of Representatives, 556 F.Supp. 150 (D.D.C. 1983); In re Sealed
Case (Espy) , 121 F.3d 729 (D.C. Cir. 1997); In re Grand Jury Proceedings, 5 F. Supp. 2d

21 (D.D.C. 1998); Judicial Watch v. Department of Justice, 365 F. 3d 1108 (D. C. Cir.


2004); Committee on the Judiciary, U.S. House of Representatives v. Miers et al. Civil
Action No. 08-0409 (JDB) (D.D.C., July 31, 2008) (Miers).
4 Senate Select Committee, supra; United States v. House of Representatives, supra; United
States v. AT&T, supra, and Miers, supra.
5 Senate Select Committee, supra, and Miers, supra.

issues.6 The most recent appellate court ruling, involving a private group’s right of
access under the Freedom of Information Act to pardon documents in the custody of
the Justice Department, centered on a presidential claim of privilege which was
rejected, and further clarified the law in this area.7
The Nixon and post-Watergate cases established the broad contours of the
presidential communications privilege. Under those precedents, the privilege, which
is constitutionally rooted, could be invoked by the President when asked to produce
documents or other materials or information that reflect presidential decisionmaking
and deliberations that he believes should remain confidential. If the President does
so, the materials become presumptively privileged. The privilege, however, is
qualified, not absolute, and can be overcome by an adequate showing of need.
Finally, while reviewing courts have expressed reluctance to balance executive
privilege claims against a congressional demand for information, they have
acknowledged they will do so if the political branches have tried in good faith but
failed to reach an accommodation.
However, until the District of Columbia Circuit’s 1997 ruling in In re Sealed
Case (Espy)8 and its 2004 decision in Judicial Watch v. Department of Justice9, these
judicial decisions had left important gaps in the law of presidential privilege which
have increasingly become focal points, if not the source, of interbranch
confrontations that has made their resolution more difficult. Among the more
significant issues left open included whether the President has to have actually seen
or been familiar with the disputed matter; whether the presidential privilege
encompasses documents and information developed by, or in the possession of,
officers and employees in the departments and agencies of the Executive Branch;
whether the privilege encompasses all communications with respect to which the
President may be interested or is it confined to presidential decisionmaking and, if
so, is it limited to any particular type of presidential decisionmaking; and precisely
what kind of demonstration of need must be shown to justify release of materials that
qualify for the privilege. The unanimous panel in Espy, and the subsequent
reaffirmation of the principles articulated in Espy by Judicial Watch, authoritatively
addressed each of these issues in a manner that may have drastically altered the future
legal playing field in resolving such disputes.
A more recent dispute with Congress involving the removal and replacement of
nine United States Attorneys has drawn formal claims of privilege by President
George W. Bush. Those privilege claims have been successfully challenged in a civil
suit brought by the House Judiciary Committee seeking declaratory and injunctive
relief with respect to refusals by present and former senior presidential aides to
appear, to testify, and to provide documents by two subpoenaed present and former


6 Nixon v. Administrator of General Services, 433 U.S. 425 (1977).
7 Judicial Watch, supra.
8 121 F.3d 729 (D.C. Cir. 1997).
9 365 F. 3d 1108 (D. C. Cir. 2004).

officials.10 The district court’s opinion may serve to further amplify the law in this
area. It is useful, however, before proceeding with a description and explication of
Espy and Judicial Watch, and the recent civil enforcement ruling, to review and
understand the prior case law and how it has affected the positions of the disputants.
The Watergate Cases
In interbranch information disputes since the early 1980’s, executive statements
and positions taken in justification of assertions of executive privilege have
frequently rested upon explanations of executive privilege made by the courts. To
better understand the executive’s stance in this area, and the potential impact on those
positions by the Espy and Judicial Watch rulings, CRS will chronologically examine
the development of the judiciary’s approach and describe how the executive has
adapted the judicial explanations of the privilege to support its arguments.
In Nixon v. Sirica,11 the first of the Watergate cases, a panel of the District of
Columbia Circuit rejected President Nixon’s claim that he was absolutely immune
from all compulsory process whenever he asserted a formal claim of executive
privilege, holding that while presidential conversations are “presumptively
privileged,”12 the presumption could be overcome by an appropriate showing of
public need by the branch seeking access to the conversations. In Sirica, “a uniquely
powerful,” albeit undefined, showing was deemed to have been made by the Special
Prosecutor that the tapes subpoenaed by the grand jury contained evidence necessary
to carrying out the vital function of determining whether probable cause existed that
those indicted had committed crimes.13
The D.C. Circuit next addressed the Senate Watergate Committee’s effort to
gain access to five presidential tapes in Senate Select Committee on Presidential
Campaign Activities v. Nixon.14 The appeals court initially determined that “[t]he
staged decisional structure established in Nixon v. Sirica” was applicable “with at
least equal force here.”15 Thus in order to overcome the presumptive privilege and
require the submission of materials for court review, a strong showing of need had
to be established. The appeals court held that the Committee had not met its burden
of showing that “the subpoenaed evidence is demonstrably critical to the responsible
fulfillment of the Committee’s function.”16 The court held that, in view of the
initiation of impeachment proceedings by the House Judiciary Committee, the
overlap of the investigative objectives of both committees, and the fact that the
impeachment committee already had the tapes sought by the Senate Committee, “the
Select Committee’s immediate oversight need for the subpoenaed tapes is, from a


10 Miers, supra.
11 487 F.2d 750 (D.C. Cir. 1973).
12 487 F.2d at 757.
13 Id.
14 498 F.2d 725 (D.C. Cir. 1974).
15 498 F.2d at 730-31.
16 Id. at 731.

congressional perspective, merely cumulative.”17 Nor did the court feel that the
Committee had shown that the subpoenaed materials were “critical to the
performance of [its] legislative functions.”18 The court could discern “no specific
legislative decisions that cannot responsibly be made without access to materials
uniquely contained in the tapes or without resolution of the ambiguities that the
[presidentially released] transcripts may contain.”19 The court concluded that the
subsequently initiated and nearly completed work of the House Judiciary Committee
had in effect preempted the Senate Committee: “More importantly,.., there is no
indication that the findings of the House Committee on the Judiciary and, eventually
the House of Representatives itself, are so likely to be inconclusive or long in coming
that the Select Committee needs immediate access of its own.”20
The D.C. Circuit’s view in Senate Select Committee that the Watergate
committee’s oversight need for the requested materials was “merely cumulative” in
light of the then concurrent impeachment inquiry, has been utilized by the Executive
as the basis for arguing that the Congress’ interest in executive information is less
compelling when a committee’s function is oversight than when it is considering
specific legislative proposals.21 This approach, however, arguably misreads the
carefully circumscribed holding of the court, and would seem to construe too
narrowly the scope of Congress’ investigatory powers.
The Senate Select Committee court’s opinion took great pains to underline the
unique and limiting nature of the case’s factual and historical context. Thus it
emphasized the overriding nature of the “events that have occurred since this
litigation was begun and, indeed, since the District Court issued its decision.”22
These included the commencement of impeachment proceedings by the House
Judiciary Committee, a committee with an “express constitutional source,” whose
“investigative objectives substantially overlap” those of the Senate Committee; that
the House Committee was presently in possession of the very tapes sought by the
Select Committee, making the Senate Committee’s need for the tapes “from a


17 Id. at 732 (emphasis supplied).
18 Id. (emphasis supplied).
19 Id. at 733.
20 Id.
21 This reading of Select Committee was a persistent characteristic of the statements of the
Reagan, George H.W. Bush and Clinton Administrations. See, e.g., Letter from Attorney
General William French Smith to President Reagan, October 31, 1981, reprinted in 5 Op.
OLC 27, 30 (1981) (Smith Letter/Watt); Memorandum to General Counsels’ Consultative
Group Re: Congressional Requests for Confidential Executive Branch Information, 13 Op.
OLC 185, 192 (1989)(Barr Memo); letter from Attorney General Janet Reno to President
Clinton, September 20, 1996, at 2-3 (Reno Letter/Haiti); Letter from Attorney General Janet
Reno to President Clinton, September 16, 1999 (Reno/FALN). It is utilized in buttressing
President George W. Bush’s June 28, 2007, privilege claim with respect to demands for
documents and testimony sought by the House and Senate Judiciary Committees relating to
their investigations concerning the dismissal and replacement of nine U.S. Attorneys. See
discussion supra at 24-26.
22 498 F. 2d at 731.

congressional perspective, merely cumulative;” the lack of evidence indicating that
Congress itself attached any particular value to “having the presidential conversations
scrutinized by two committees simultaneously;” that the necessity for the tapes in
order to make “legislative judgments has been substantially undermined by
subsequent events,” including the public release of transcripts of the tapes by the
President; the transfer of four of five of the original tapes to the district court; and the
lack of any “indication that the findings of the House Committee on the Judiciary
and, eventually, the House of Representatives itself, are so likely to be inconclusive
or long in coming that the Select Committee needs immediate access of its own.”23
The appeals court concluded by reiterating the uniqueness of the case’s facts and
temporal circumstances: “We conclude that the need demonstrated by the Select
Committee in the peculiar circumstances of this case, including the subsequent and
on-going investigation of the House Judiciary Committee, is too attenuated and too
tangential to its functions to permit a judicial judgment that the President is required
to comply with the Committee’s subpoena.”24
The Executive’s position arguably ignores the roots of Congress’ broad
investigatory powers that reach back to the establishment of the Constitution and
which have been continually reaffirmed by the Supreme Court. As George Mason
recognized at the Constitutional Convention, Congress “are not only Legislators but
they possess inquisitorial power. They must meet frequently to inspect the Conduct
of the public offices.”25 Woodrow Wilson remarked:
Quite as important as legislation is vigilant oversight of administration; and even
more important than legislation is the instruction and guidance in political affairs
which the people might receive from a body which kept all national concerns
suffused in a broad daylight of discussion .... The informing functions of
Congress should be preferred even to its legislative function. The argument is
not only that a discussed and interrogated administration is the only pure and
efficient administration, but, more than that, that the only really self-governing26
people is that people which discusses and interrogates its administration.
The Supreme Court has cited Wilson favorably on this point.27 Moreover, the
Court has failed to make any distinction between Congress’ right to executive branch
information in pursuit of its oversight function and in support of its responsibility to
enact, amend, and repeal laws. In fact, the Court has recognized that Congress’
investigatory power “comprehends probes into departments of the Federal


23 Id. at 732-33.
24 Id. at 733. It is important to note that the Select committee was established a Senate
Resolution 60 (1973) as a special investigation committee with no legislative authority. Its
sole mission was to determine the facts about the Watergate break-in, and its aftermath, and
report to the Senate its findings and recommendations.
25 2 The Records of the Constitutional Convention of 1787, at 206 (Max Farrand, ed., 1966).
26 Woodrow Wilson, Congressional Government 195, 198 (Meridian Books 1956)(1885).
27 See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 132 (1979).

Government to expose corruption, inefficiency or waste.”28 Thus, to read Senate
Select Committee as downplaying the status of oversight arguably ignores the court’s
very specific reasons for not enforcing the committee’s subpoena under the unique
circumstance of that case and creates a distinction between oversight and legislating
that has yet to be embraced by the courts. Moreover, the Senate Select Committee
panel’s “demonstrably critical” standard for overcoming a president’s presumptive
claim of privilege is not reflected in any of the subsequent Supreme Court or
appellate court rulings establishing a balancing test for overcoming the qualified
presidential privilege.
Two months after the ruling in Senate Select Committee, the Supreme Court
issued its unanimous ruling in United States v. Nixon,29 which involved a judicial trial
subpoena to the President at the request of the Watergate Special Prosecutor for tape
recordings and documents relating to the President’s conversations with close aides
and advisors. For the first time, the Court found a constitutional basis for the
doctrine of executive privilege in “the supremacy of each branch within its own
assigned area of constitutional duties” and in the separation of powers.30 But
although it considered a president’s communications with his close advisors to be
“presumptively privileged,” the Court rejected the President’s contention that the
privilege was absolute, precluding judicial review whenever it is asserted.31 Also,
while acknowledging the need for confidentiality of high level communications in
the exercise of Article II powers, the Court stated that when the privilege depends
solely on the broad, undifferentiated claim of public interest in the confidentiality of
such communications,” a confrontation with other values arises.”32 It held that
“absent a need to protect military, diplomatic, or sensitive national security secrets,
we find it difficult to accept the argument that even the very important interest in
confidentiality of presidential communications is significantly diminished by
production of” materials that are essential to the enforcement of criminal statutes.33
Having concluded that the claim of privilege was qualified, the Court resolved
the “competing interests” — the President’s need for confidentiality vs. the
judiciary’s need for materials in a criminal proceeding — “in a manner that preserves
the essential functions of each branch,”34 holding that the judicial need for the tapes,
as shown by a “demonstrated, specific need for evidence in a pending criminal trial,”
outweighed the President’s “generalized interest in confidentiality ...”.35 The Court
was careful, however, to limit the scope of its decision, noting that “we are not here


28 Watkins v. United States, 354 U.S. 173, 187 (1957). See also, McGrain v. Daugherty, 272
U.S. 135, 177 (1926); Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 n. 15 (1975).
29 418 U.S. 683 (1974)(Nixon I).
30 418 U.S. 705, 706. See also, id. at 708, 711.
31 Id. at 705, 706, 708.
32 Id. at 706.
33 Id.
34 Id. at 707.
35 Id. at 713.

concerned with the balance between the President’s generalized interest in
confidentiality ... and congressional demands for information.”36
In the last of the Nixon cases, Nixon v. Administrator of General Services37, the
Supreme Court again balanced competing interests in President Nixon’s White
House records. The Presidential Recordings and Materials Preservation Act granted
custody of President Nixon’s presidential records to the Administrator of the General
Services Administration who would screen them for personal and private materials,
which would be returned to Mr. Nixon, but preserve the rest for historical and
governmental objectives. The Court rejected Mr. Nixon’s challenge to the act, which
included an argument based on the “presidential privilege of confidentiality.”38
Although Nixon II did not involve an executive response to a congressional probe,
several points emerge from the Court’s discussion that bear upon Congress’ interest
in confidential executive branch information. First, the Court reiterated that the
executive privilege it had announced in Nixon I was not absolute, but qualified.39
Second, the Court stressed the narrow scope of that privilege. “In [Nixon I] the
Court held that the privilege 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.”’40 Third, the Court found that there was a
“substantial public interest[]” in preserving these materials so that Congress, pursuant
to its “broad investigative power,” could examine them to understand the events that
led to President Nixon’s resignation “in order to gauge the necessity for remedial
legi slation.”41
Post-Watergate Cases
Two post-Watergate cases, both involving congressional demands for access to
executive information, demonstrate both the judicial reluctance to involve itself in
the essentially political confrontations such disputes represent, and also the
willingness to intervene where the political process appears to be failing.
In United States v. AT&T,42 the D.C. Circuit was unwilling to balance executive
privilege claims against a congressional demand for information unless and until the
political branches had tried in good faith but failed to reach an accommodation.43 In
that case, the Justice Department had sought to enjoin AT&T’s compliance with a


36 Id. at 712 n. 19.
37 433 U.S. 425 (1977)(Nixon II).
38 Id. at 439.
39 Id. at 446.
40 Id. at 449 (citations omitted).
41 Id. at 453.
42 567 F.2d 121 (D.C. Cir. 1977).
43 This was the second time the case was before the court. After its initial review it was
remanded to the district court to allow the parties further opportunity to negotiate an
accommodation. See 551 F.2d 384 (D.C. Cir. 1976).

subpoena issued by a House subcommittee. The subcommittee was seeking FBI
letters requesting AT&T’s assistance with warrantless wiretaps on U.S. citizens
allegedly made for national security purposes. The Justice Department argued that
the executive branch was entitled to sole control over the information because of “its
obligation to safeguard the national security.”44 The House of Representatives, as
intervenor, argued that its rights to the information flowed from its constitutionally
implied power to investigate whether there had been abuses of the wiretapping
power. The House also argued that the court had no jurisdiction over the dispute
because of the Speech or Debate Clause.
The court rejected the “conflicting claims of the [Executive and the Congress]
to absolute authority.”45 With regard to the executive’s claim, the court noted that
there was no absolute claim of executive privilege against Congress even in the area
of national security:
The executive would have it that the Constitution confers on the executive
absolute discretion in the area of national security. This does not stand up.
While the Constitution assigns to the President a number of powers relating to
national security, including the function of commander in chief and the power
to make treaties and appoint Ambassadors, it confers upon Congress other
powers equally inseparable from the national security, such as the powers to
declare war, raise and support armed forces and, in the case of the Senate,46
consent to treaties and the appointment of ambassadors.
Likewise, the court rejected the congressional claim that the Speech or Debate Clause
was “intended to immunize congressional investigatory actions from judicial review.
Congress’ investigatory power is not, itself, absolute.”47
According to the court, judicial intervention in executive privilege disputes
between the political branches is improper unless there has been a good faith but
unsuccessful effort at compromise.48 There is in the Constitution, the court held, a
duty that the executive and Congress attempt to accommodate the needs of each
other:
The framers, rather than attempting to define and allocate all governmental
power in minute detail, 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


44 Id. at 127 n.17.
45 Id. at 128.
46 Id. at 128.
47 Id. at 129.
48 Id. at 127-28.

optimal accommodation through a realistic evaluation of the needs of the49
conflicting branches in the particular fact situation.
The court refused to resolve the dispute because the executive and the Congress had
not yet made that constitutionally mandated effort at accommodation. Instead, the
court “encouraged negotiations in order to avoid the problems inherent in [the
judiciary] formulating and applying standards for measuring the relative needs of the
[executive and legislative branches].”50 The court suggested, however, that it would51
resolve the dispute if the political branches failed to reach an accommodation. The
court-encouraged negotiations ultimately led to a compromise. Subcommittee staff
was allowed to review some unedited memoranda describing the warrantless wiretaps
and report orally to subcommittee members. The Justice Department retained52
custody of the documents.
The federal district court in the District of Columbia displayed the same
reluctance to intervene in an executive privilege dispute with Congress in United53
States v. House of Representatives. There the court dismissed a suit brought by the
Justice Department seeking a declaratory judgment that the Administrator of the
Environmental Protection Agency (EPA) “acted lawfully in refusing to release
certain documents to a congressional subcommittee” at the direction of the54
President. The Administrator based her refusal upon President Reagan’s invocation
of executive privilege against a House committee probing the EPA’s enforcement of
hazardous waste laws. The court dismissed the case, without reaching the executive
privilege claim, on the ground that judicial intervention in a dispute “concerning the
respective powers of the Legislative and Executive Branches ... should be delayed
until all possibilities for settlement have been exhausted.”55 “Compromise and56
cooperation, rather than confrontation, should be the aim of the parties.” As the
Court of Appeals had done in United States v. AT&T, the district court in United
States v. House of Representatives encouraged the political branches to settle their
dispute rather than invite judicial intervention. Only if the parties could not agree
would the court intervene and resolve the interbranch dispute, and even then, the
courts advised, “Judicial resolution of this constitutional claim...will never become
necessary unless Administrator Gorsuch becomes a defendant in either a criminal
contempt proceeding or other legal action taken by Congress.”57 Ultimately the


49 Id. at 127 (footnote omitted).
50 Id. at 130.
51 Id. at 123, 126.
52 Id. at 131-32.
53 556 F.Supp. 150 (D.D.C. 1983).
54 Id. at 151.
55 Id. at 152.
56 Id. at 153.
57 Id. at 152, 153.

branches did reach an agreement, and the court did not need to balance executive and
congressional interests.58
Executive Branch Positions on the Scope of Executive
Privilege: Reagan Through George W. Bush
Not surprisingly, the executive branch has developed an expansive view of
executive privilege in congressional investigations, taking maximum advantage of
the vague and essentially undefined terrain within the judicially recognized contours
of the privilege. Thus, executive branch statements have identified four areas that
are asserted to be presumptively covered by executive privilege: foreign relations
and military affairs, two separate topics that are sometimes lumped together as “state
secrets,” law enforcement investigations, and confidential information that reveals
the executive’s “deliberative process” with respect to policymaking. Typically, the
executive has asserted executive privilege based upon a combination of the
deliberative process exemption and one or more of the other categories. As a
consequence, much of the controversy surrounding invocation of executive privilege
has centered on the scope of the deliberative process exemption. The executive has
argued that at its core this category protects confidential predecisional deliberative59
material. Justifications for this exemption often draw upon the language in United
States v. Nixon that identifies a constitutional value in the President receiving candid
advice from his subordinates and awareness that any expectation of subsequent
disclosure might temper needed candor.60 The result has been a presumption by the
executive that its predecisional deliberations are beyond the scope of congressional
demand. “Congress will have a legitimate need to know the preliminary positions
taken by Executive Branch officials during internal deliberations only in the rarest
of circumstances.” 61 According to this view, the need for the executive to prevent


58 See Devins, supra, n. 2 at 118-120.
59 See Smith letter, supra note 20; 5 Op. OLC at 28-31; Barr Memo, supra n.20; 13 Op. OLC
at 187-190; Reno/FALN letter, supra n. 20.
60 See, e.g., 418 U.S. at 705. See also, Smith Letter, supra, note 20, 5 Op. OLC at 29;
Memorandum for All Executive Department and Agency General Counsel’s Re:
Congressional Requests to Departments and Agencies Protected By Executive Privilege,
September 28, 1994, at 1, 2 (Cutler Memo); Letter from Jack Quinn to Hon. William A.
Zellif, Jr., October 1, 1996, at 1 (Quinn Letter/FBI); Memorandum from President Bush to
Secretary of Defense Richard Cheney Re: Congressional Subpoena for an Executive Branch
Document, August 8, 1991, at 1 (Bush Memo).
61 Smith Letter/Watt, supra n. 20 at 31; see also id. at 30 (“congressional oversight interest
will support a demand for predecisional, deliberative documents in the possession of the
Executive Branch only in the most unusual circumstances”). Accord, Barr Memo, supra
n.20 at 192 (“Congress will seldom have any legitimate legislative interest in knowing the
precise predecisional positions and statements of particular Executive Branch officials”.);
letter from Assistant Attorney General Robert Rabkin, Office of Legislative Affairs, DOJ,
to Honorable John Linder, Chairman House Subcommittee on Rules and Organization of the
House, Committee on Rules, June 27, 2000 at 5-6 (Rabkin Letter)(“[T]he Department has
a broad confidentiality interest in matters that reflect its internal deliberative process. In
particular, we have sought to ensure that all law enforcement and litigation decisions are
(continued...)

disclosure of its deliberations is at its apex when Congress attempts to discover
information about ongoing policymaking within the executive branch. In that case,
the executive has argued, the deliberative process exemption serves as an important
boundary marking the separation of powers. When congressional oversight “is used
as a means of participating directly in an ongoing process of decisionmaking within
the Executive Branch, it oversteps the bounds of the proper legislative function.”62
The executive has also argued that because candor is the principal value served
by the exemption, its protection should extend beyond predecisional deliberations to
deliberations involving decisions already made. “Moreover, even if the decision at
issue had already been made, disclosure to Congress could still deter the candor of
future Executive Branch deliberations.”63 Executives have also taken the position
that the privilege covers confidential communications with respect to policymaking
well beyond the confines of the White House and the President’s closest advisors.
The Eisenhower Administration took the most expansive approach, arguing that the
privilege applied broadly to advice on official matters among employees of the


61 (...continued)
products of open, frank, and independent assessments of the law and facts — uninhibited
by political and improper influences that may be present outside the department. We have
long been concerned about the chilling effect that would ripple throughout government if
prosecutors, policy advisors at all levels and line attorneys believed that their honest opinion
— be it ‘good’ or ‘bad’ - may be the topic of debate in Congressional hearings or floor
debates. These include assessments of evidence and law, candid advice on strength and
weaknesses of legal arguments, and recommendations to take or not to take legal action
against individuals and corporate entities.”).
62 Smith Letter/Watt, supra n. 20 at 30; see also Statement of Assistant Attorney General
William H. Rehnquist, reprinted in Executive Privilege: The Withholding of Information by
the Executive: Hearings Before the Subcommittee on Separation of Powers of the Senatest
Committee on the Judiciary, 92d Cong. 1 Sess. 424 (Rehnquist Statement). (“The notion
that the advisors whom he has chosen should bear some sort of a hybrid responsibility to
opinion makers outside of the government, which notion in practice would inevitably have
the effect of diluting their responsibility to him, is entirely inconsistent with our tripartite
systems of government. The President is entitled to undivided and faithful advice from his
subordinates, just as Senators and Representatives are entitled to the same sort of advice
from their legislative and administrative assistants, and judges to the same sort of advice
from their law clerks.”); Rabkin Letter id. at n.60 (“The foregoing concerns apply with
special force to Congressional requests for prosecution and declination memoranda and
similar documents. These are extremely sensitive law enforcement materials. The
Department’s attorneys are asked to render unbiased, professional judgments about the
merits of potential criminal and civil law enforcement cases. If their deliberative documents
were made subject to Congressional challenge and scrutiny, we would face a grave danger
that they would be chilled from providing the candid and independent analysis essential to
just and effective law enforcement or just as troubling, that our assessments of the strengths
and weaknesses of evidence of the law, before they are presented in court. That may result
in an unfair advantage to those who seek public funds and deprive the taxpayers of
confidential representation enjoyed by other litigants.”).
63 Smith Letter/Watt, supra n. 20; 5 Op. OLC at 29.

executive branch.64 The Nixon Administration appears to have taken a similar view,
arguing that the privilege applied to decisionmaking at a “high governmental level,”
but conceding that the protected communication must be related to presidential
decisionmaking.65 The Reagan Justice Department appears to have taken a slightly
narrower view of the scope of the privilege, requiring that the protected
communications have some nexus to the presidential decisionmaking process.66
The George H. W. Bush Administration took the position that recommendations
made to senior department officials and communications of senior policymakers
throughout the executive branch were protected by executive privilege without regard
to whether they involved communications intended to go to the President.67 Finally,
the Clinton Administration took a similarly expansive position that all
communications within the White House68 or between the White House and any
federal department or agency69 are presumptively privileged.
The George W. Bush Administration, through presidential signing statements,
70 executive orders71, and opinions of the Department of Justice’s Office of Legal


64 See Rozell, supra n.1 at 39 - 40.
65 In his prepared statement to the Subcommittee on Separation of Powers of the Senate
Judiciary Committee, Assistant Attorney General Rehnquist distinguished between “those
few executive branch witnesses whose sole responsibility is that of advising the President”
who “should not be required to appear [before Congress] at all, since all of their official
responsibilities would be subject to a claim of privilege” and “the executive branch witness
... whose responsibilities include the administration of departments or agencies established
by Congress, and from whom Congress may quite properly require extensive testimony,”
subject to “appropriate” claims of privilege. Rehnquist Statement, supra n. 10 at 427.
Moreover, in colloquy with Senator Helms, Mr. Rehnquist seemed to accept that the
privilege protected only communications with some nexus to presidential decisionmaking:
SENATOR ERVIN: As I construe your testimony, the decisionmaking process
category would apply to communications between presidential advisers and the President
and also to communications made between subordinates of the President when they are
engaged in the process of determining what recommendations they should make to the
President in respect to matters of policy.
MR. REHNQUIST: It would certainly extend that far, yes.
Id. at 439-40. See also Roelle, supra n.1 at 65-66.
66 See Memorandum for the Attorney General Re: Confidentiality of the Attorney General’s
Communications in Counseling the President, 6 Op. OLC 481, 489 (1982)(Olson Memo).
67 Bush Memo, supra n. 59 at 1. Letter from General Counsel, DOD, Terrence O’Donnell
to Hon. John Conyers, Jr., October 8, 1991, at 5 (O’Donnell Letter).
68 See, e.g., Cutler Memo, supra n. 59 at 2.
69 See, e.g., Cutler Memo, supra n. 59 at 2 (Communications between White House and
departments or agencies, including advice to or from to White House); Reno/FALN letter,
supra n. 20.
70 See CRS Report RL33667, Presidential Signing Statements: Constitutional and
(continued...)

Counsel (OLC) has articulated a legal view of the breadth and reach of presidential
constitutional prerogatives that if applied to information and documents often sought
by congressional committees, would stymie such inquiries.72 In OLC’s view, under
the precepts of executive privilege and the unitary executive, Congress may not
bypass the procedures the President establishes to authorize disclosure to Congress
of classified, privileged, or even non-privileged information by vesting lower-level
officers or employees with a right to disclose such information without presidential
authorization. Thus, OLC has declared that “right of disclosure” statutes
“unconstitutionally limit the ability of the President and his appointees to supervise
and control the work of subordinate officers and employees of the Executive
Branch.”73 The OLC assertions of these broad notions of presidential prerogatives
are unaccompanied by any authoritative judicial citations.
The executive has acknowledged some limits to its use of executive privilege.
Thus, presidents have stated they will not use executive privilege to block
congressional inquiries into allegations of fraud, corruption, or other illegal or
unethical conduct in the executive branch. The Clinton Administration announced
that “[i]n circumstances involving communications relating to investigations of
personal wrongdoing by government officials, it is our practice not to assert
executive privilege, either in judicial proceedings or in congressional investigations


70 (...continued)
Institutional Implications, by T. J. Halstead.
71 See e.g., Executive Order 13233 issued by President Bush on November 1, 2001, which
gave current and former presidents and vice presidents broad authority to withhold
presidential records and delay their release indefinitely. It vests former vice presidents, and
the heirs or designees of disabled or deceased presidents the authority to assert executive
privilege, and expands the scope of claims of privilege. Hearings held by the House
Committee on Government Reform in 2002 raised substantial questions as to the
constitutionality of the Order and resulted in the reporting of legislation (H.R. 4187) in theth
107 Congress that would have nullified the Order and established new processes for
presidential claims of privilege and for congressional and public access to presidentialthnd
records. H.Rept. 107-790, 107 Cong. 2 Sess. (2002). Substantially the same legislationthst
(H.R. 1225) passed the House on March 14, 2007. See H.Rept. 110-44, 110 Cong. 1 Sess.
(2007), and was reported out of the Senate Committee on Homeland Security and
Governmental Affairs on June 20, 2007, without amendment and with no written report.
See generally, Jonathan Turley, “Presidential Papers and Popular Government: The
Convergence of Constitutional and Property Theory in Claims of Ownership and Control
of Presidential Records.” 88 Cornell L. Rev. 651, 666-696 (2003).
72 See Letter dated May 21, 2004 to Hon. Alex M. Azar, II, General Counsel, Department
of Health and Human Services from Jack L. Goldsmith III, Assistant Attorney General,
Office of Legal Counsel, Department of Justice, available at,
[http://www.usdoj.gov/olc/crsmemoresponsese.htm]. This broad view of presidential
privilege was repeated in Attorney General Mulkasey’s request to the President that he claim
executive privilege with respect to a House Committee subpoena for DOJ documents in an
investigation by a DOJ Special Counsel in the revelation of a CIA agent’s identity, See letter
to the President from Attorney General Mulkasey, dated July 15, 2008, See also discussion,
infra, at 40-41.
73 Id. at 3.

and hearings.”74 Similarly, the Reagan Administration policy was to refuse to invoke
executive privilege when faced with allegations of illegal or unethical conduct:
“[T]he privilege should not be invoked to conceal evidence of wrongdoing or
criminality on the part of executive officers.”75 A significant application of this
policy came in the Iran/Contra investigations when President Reagan did not assert
executive privilege and even made “relevant excerpts” of his personal diaries
available to congressional investigators.76
The executive has often tied its willingness to forego assertion of privilege
claims to the recognized exceptions to the deliberative process exemption, stating
that it would not seek to protect materials whose disclosure “would not implicate or
hinder” the executive decisionmaking processes.77 Thus, “factual, nonsensitive
materials — communications from the Attorney General [or other executive branch
official] which do not contain advice, recommendations, tentative legal judgments,
drafts of documents, or other material reflecting deliberative or policymaking
processes — do not fall within the scope of materials for which executive privilege
may be claimed as a basis of nondisclosure.”78
Recent administrations have stated that their policy “is to comply with
congressional requests for information to the fullest extent consistent with the
constitutional and statutory obligations of the Executive Branch.”79 Executive
privilege will be invoked only after “careful review”80 in the “most compelling
circumstances,”81 and only after the executive has done “the utmost to reach an
accommodation” with Congress.82 The George W. Bush Administration limited the
formal claims of executive privilege to those instances where the effort to


74 Cutler Memo, supra n. 59 at 1.
75 Congressional Subpoenas of Department of Justice Investigative Files, 8 Op. OLC 315
(1984). Accord, Smith Letter/EPA, supra n. 20 at 36 (“These principles will not be
employed to shield documents which contain evidence of criminal or unethical conduct by
agency officials from proper review”.).
76 See David Hoffman, “President Offers to Share Iran Sales Notes with Hill; Aides
Reversed on Memoir Materials.” Washington Post, February 3, 1987, at A1.
77 Olson Memo, supra n. 64 at 486; Rabkin Letter, supra n. 60.
78 Id.; but see Smith Letter/EPA, supra n. 20 at 32 (“policy does not extend to all material
contained in investigative files .... The only documents which have been withheld are those
which are sensitive memoranda or notes by ... attorneys and investigators reflecting
enforcement strategy, legal analysis, lists of potential witnesses, settlement considerations,
and similar materials the disclosure of which might adversely affect a pending enforcement
action, overall enforcement policy, or the rights of individuals”.).
79 Cutler Memo, supra n. 59 at 1. Accord Memorandum from President Reagan for the
Heads of Executive Departments, and Agencies Re: Procedures for Governing Responses
to Congressional Requests for Information, November 4, 1982 (Reagan Memo); Rabkin
Letter, supra n. 60, at 1-2
80 Cutler Memo, supra n. 59 at 1.
81 Reagan Memo, supra n. 74, at 1.
82 Barr Memo, supra n. 20, at 185.

accommodate had failed and Congress had issued a subpoena.83 The duty to seek an
accommodation is said to have been the result of the uncertain boundaries between
executive and legislative interests.84 This uncertainty imposes upon each of the
branches an “obligation ... to accommodate the legitimate needs of the other,”85 and
a duty to conduct “good faith” negotiations.86 Avoiding the disclosure of
embarrassing information is not a sufficient reason to withhold information from
Congress.87 In fact it has been averred that invocation of the privilege should not
even be considered in the absence of a “demonstrable justification that Executive
withholding will further the public interest.”88
Where negotiations have faltered and the President has made a formal claim of
executive privilege, the executive will likely argue (as the Clinton Administration did
in its invocations of executive privilege89) that the investigating committee has not
made the showing required under Senate Select Committee v. Nixon that the
subpoenaed evidence is “demonstrably critical to the responsible fulfillment of the
Committee’s functions.”90 As has been indicated above, since at least the Reagan
Administration, each executive has argued that Congress’s interest in executive
information is less compelling when the Committee’s function is oversight than when
it is considering specific legislative proposals.
In sum, then, in the absence of further judicial definition of executive privilege
since the Nixon cases, the executive, through presidential signing statements,
executive orders, Office of Legal Counsel Opinions, and, most recently, White House
Counsel directives, has attempted to effect a practical expansion of the scope of the
privilege. The key vehicle has been the notion of deliberative process. Developed
under the Freedom of Information Act to provide limited protection for the
predecisional considerations of agency officials, it has been melded with the
recognized presidential interest in confidentiality of his communications with his
close advisors to include pre-and post-decisional deliberations and the factual
underpinnings of those decisional processes, and is argued to reach policy
deliberations and communications of department and agency officials and employees
in which the President may have an interest. The Clinton Administration sought to
make this doctrinal expansion effective by centralizing scrutiny and control of all


83 Id. at 185, 186. See Rozelle supra n.1 at 106-108.
84 Rehnquist Statement, supra n. 63, at 420.
85 Smith Letter/Watt, supra n. 20, at 31.
86 Reagan Memo, supra n. 74, at 1.
87 Rehnquist Statement, supra n. 63, at 422.
88 Id.
89 Letter from Attorney General Janet Reno to President Clinton, September 20, 1996, at 2-3
(Reno Letter/Haiti); letter from Attorney General Reno to President Clinton, September 30,

1996, at 2 (Reno Letter/FBI); letter from Attorney General Reno to President Clinton,


September 16, 1999 (Reno Letter/FALN). The Acting Attorney General’s opinion
accompanying President George W. Bush’s June 28, 2007, claim of executive privilege,
discussed in infra at 24-26, relies heavily on the Senate Select Committee precedent.
90 498 F.2d at 731.

potential claims of executive privilege in the White House Counsel’s Office. In a
memorandum dated September 28, 1994, from White House Counsel Lloyd Cutler
to all department and agency general counsels, agency heads were instructed to
directly notify the White House Counsel of any congressional request for “any
document created in the White House ... or in a department or agency, that contains
deliberations of, or advice to or from the White House” which may raise privilege
issues. The White House Counsel is to seek an accommodation and if that does not
succeed, he is to consult with the Attorney General to determine whether to
recommend invocation of privilege to the President. The President then determines
whether to claim privilege, which is then communicated to the Congress by the
White House Counsel.91
The Cutler memo modifies President Reagan’s 1982 establishment of a more
decentralized procedure. Under the Reagan memorandum if the head of an agency,
with the advice of agency counsel, decided that a substantial question was raised by
a congressional information request, the Attorney General, through the Office of
Legal Counsel, and the White House Counsel’s Office, was promptly notified and
consulted. If one or more of the presidential advisors deemed the issue substantial,
the President was informed and decided, and the decision was to be communicated
by the agency head to the Congress. The Reagan memo also contrasts with the Cutler
memo in that it had a far narrower definition of what the privilege covered. The
Reagan memo pinpointed national security, deliberative communications that form
part of the decisionmaking process, and other information important to the discharge
of Executive Branch constitutional responsibilities.92
Establishing the White House Counsel’s Office as a central clearinghouse and
control center for presidential privilege claims appears to have had the effect of
diminishing the historic role of the Justice Department’s Office of Legal Counsel as
the constitutional counselor to the President and limiting agencies’ ability to deal
informally with their congressional overseers, which is likely to have been its
principal objective. An apparent consequence during the Clinton years was a more
rapid escalation of individual interbranch information disputes clashes, a widening
and hardening of the differences in the legal positions of the branches on privilege
issues, and an increased difficulty in resolving disputes informally and quickly.
President Clinton formally asserted executive privilege fourteen times and resolved
a number of disputes under the pressure of imminent committee actions on contempt
citations and subpoena issuances.93 In addition, the Clinton Administration litigated,
and lost, significant privilege cases between 1997 and 1998.94 One, Espy, to which


91 Cutler Memo, supra n. 20 at 2-3.
92 Reagan Memo, supra n. 71 at 2.
93 See the Appendix of this Report for a compilation of executive privilege claims from the
Kennedy through the George W. Bush Administrations.
94 Clinton v. Jones, 520 U.S. 681(1997)(no temporary presidential immunity from civil suit
for unofficial acts); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997),
cert. denied 521 U.S. 1105 (1997)(claims of attorney-client and work product privilege
denied); In re Sealed Case, 121 F.3d 729 (D.C. Cir 1977)(claims of executive privilege
(continued...)

CRS will now turn, arguably undermines many key executive assumptions about the
privilege just detailed and thus may reshape the nature and course of future
presidential privilege disputes.
Implications and Potential Impact of the Espy and Judicial
Watch Rulings for Future Executive Privilege Disputes
In Espy,95 the appeals court addressed several important issues left unresolved
by the Watergate cases: the precise parameters of the presidential executive privilege;
how far down the chain of command the privilege reaches; whether the President has
to have seen or had knowledge of the existence of the documents for which he claims
privilege; and what showing is necessary to overcome a valid claim of privilege.
The case arose out of an Office of Independent Counsel (OIC) investigation of
former Agriculture Secretary Mike Espy. When allegations of improprieties by Espy
surfaced in March of 1994, President Clinton ordered the White House Counsel’s
Office to investigate and report to him so he could determine what action, if any, he
should undertake. The White House Counsel’s Office prepared a report for the
President, which was publically released on October 11, 1994. The Espy court noted
that the President never saw any of the underlying or supporting documents to the
report. Espy had announced his resignation on October 3, to be effective on
December 31. The Independent Counsel was appointed on September 9 and the grand
jury issued a subpoena for all documents that were accumulated or used in
preparation of the report on October 14, three days after the report’s issuance. The
President withheld 84 documents, claiming both the executive and deliberative
process privileges for all documents. A motion to compel was resisted on the basis
of the claimed privileges. After in camera review, the district court quashed the
subpoena, but in its written opinion the court did not discuss the documents in any
detail and provided no analysis of the grand jury’s need for the documents. The
appeals court panel unanimously reversed.
At the outset, the court’s opinion carefully distinguishes between the
“presidential communications privilege” and the “deliberative process privilege.”
Both, the court observed, are executive privileges designed to protect the
confidentiality of executive branch decisionmaking. But the deliberative process
privilege, that applies to executive branch officials generally, is a common law
privilege which requires a lower threshold of need to be overcome, and “disappears


94 (...continued)
rejected); In re Sealed Case, 124 F.3d 230 (D.C. Cir. 1997)(claims of attorney-client and
work product privilege denied); In re Sealed Case, 148 F. 3d 1073 (D.C. Cir.) cert. denied
525 U.S.990(1998) (claim of “protective function” privilege denied); In re Bruce R. Lindsey
(Grand Jury Testimony), 148 F. 3d 1100 (D.C. Cir. 1998) (claims of attorney-client and
work product privilege denied).
95 121 F.3d 729 (D.C. Cir. 1997).

altogether when there is any reason to believe government misconduct has
occurred.”96
On the other hand, the court explained, the presidential communications
privilege is rooted in “constitutional separation of powers principles and the
President’s unique constitutional role” and applies only to “direct decisionmaking by
the President.”97 The privilege may be overcome only by a substantial showing that
“the subpoenaed materials likely contain[] important evidence” and that “the
evidence is not available with due diligence elsewhere.”98 The presidential privilege
applies to all documents in their entirety99 and covers final and post-decisional
materials as well as pre-deliberative ones.100
Turning to the chain of command issue, the court held that the presidential
communications privilege must cover communications made or received by
presidential advisers in the course of preparing advice for the President even if those
communications are not made directly to the President. The court rested its
conclusion on “the President’s dependence on presidential advisers and the inability
of the deliberative process privilege to provide advisers with adequate freedom from
the public spotlight” and “the need to provide sufficient elbow room for advisers to
obtain information from all knowledgeable sources.”101 Thus the privilege will
“apply both to communications which these advisers solicited and received from
others as well as those they authored themselves. The privilege must also extend to
communications authored or received in response to a solicitation by members of a
presidential adviser’s staff.”102
The court, however, was acutely aware of the dangers to open government that
a limitless extension of the privilege risks and carefully cabined its reach by
explicitly confining it to White House staff, and not staff in the agencies, and then
only to White House staff that has “operational proximity” to direct presidential
decisionmaking.
We are aware that such an extension, unless carefully circumscribed to
accomplish the purposes of the privilege, could pose a significant risk of


96 121 F.3d at 745, 746; see also id. at 737-738 (“[W]here there is reason to believe the
documents sought may shed light on government misconduct, the [deliberative process]
privilege is routinely denied on the grounds that shielding internal government deliberations
in this context does not serve ‘the public interest in honest, effective government’”).
97 Id. at 745, 752. See also id. at 753 (“... these communications nonetheless are ultimately
connected with presidential decisionmaking”).
98 Id. at 754. See also id. at 757.
99 In contrast, the deliberative process privilege does not protect documents that simply state
or explain a decision the government has already made or material that is purely factual,
unless the material is inextricably intertwined with the deliberative portions of the materials
so that disclosure would effectively reveal the deliberations. 121 F.3d at 737.
100 Id. at 745.
101 Id. at 752.
102 Id.

expanding to a large swath of the executive branch a privilege that is bottomed
on a recognition of the unique role of the President. In order to limit this risk, 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. Not every person who plays a
role in the development of presidential advice, no matter how remote and
removed from the President, can qualify for the privilege. In particular, 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
advisor’s staff who have broad and significant responsibility for investigation
and formulating the advice to be given the President on the particular matter to
which the communications relate. Only communications at that level are close
enough to the President to be revelatory of his deliberations or to pose a risk to
the candor of his advisers. See AAPS, 997 F.2d at 910 (it is “operational
proximity” to the President that matters in determining whether “[t]he President’s
confidentiality interests” is implicated)(emphasis omitted).
Of course, the privilege only applies to communications that these advisers and
their staff author or solicit and receive in the course of performing their function
of advising the President on official government matters. This restriction is
particularly important in regard to those officials who exercise substantial
independent authority or perform other functions in addition to advising the
President, and thus are subject to FOIA and other open government statutes. See
Armstrong v. Executive Office of the President, 90 F.3d 553, 558 (D.C. Cir.
1996), cert denied — U.S. — -, 117 S.Ct. 1842, 137 L. Ed.2d 1046 (1997). The
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. If the government seeks to assert the
presidential communications privilege in regard to particular communications of
these “dual hat” presidential advisers, the government bears the burden of
proving that the communications occurred in conjunction with the process of103
advising the President.
The appeals court’s limitation of the presidential communications privilege to
“direct decisionmaking by the President” makes it imperative to identify the type of
decisionmaking to which it refers. A close reading of the opinion makes it arguable
that it is meant to encompass only those functions that form the core of presidential
authority, involving what the court characterized as “quintessential and non-delegable104
Presidential power.” In the case before it, the court was specifically referring to
the President’s Article II appointment and removal power which was the focal point
of the advice he sought in the Espy matter. But it seems clear from the context of the
opinion that the description was meant to be in juxtaposition with the appointment
and removal power and in contrast with “presidential powers and responsibilities”
that “can be exercised or performed without the President’s direct involvement,105
pursuant to a presidential delegation of authority or statutory framework.” The
reference the court uses to illustrate the latter category is the President’s Article II


103 Id. (footnote omitted).
104 Id. at 752.
105 Id. at 752-53.

duty “to take care that the laws are faithfully executed,” a constitutional direction that
the courts have consistently held not to be a source of presidential power but rather
an obligation on the President to see to it that the will of Congress is carried out by
the executive bureaucracy.106
The appeals court, then, would appear to be confining the parameters of the
newly formulated presidential communications privilege by tying it to those Article
II functions that are identifiable as “quintessential and non-delegable,” which would
appear to include, in addition to the appointment and removal powers, the
commander-in-chief power, the sole authority to receive ambassadors and other
public ministers, the power to negotiate treaties, and the power to grant pardons and
reprieves. On the other hand, decisionmaking vested by statute in the President or
agency heads such as rulemaking, environmental policy, consumer protection,
workplace safety and labor relations, among others, would not necessarily be
covered. Of course, the President’s role in supervising and coordinating (but not
displacing) decisionmaking in the executive branch remains unimpeded. But his
communications in furtherance of such activities would presumably not be cloaked
by constitutional privilege.
Such a reading of this critical passage of the court’s opinion is consonant with
the court’s view of the source and purpose of the presidential communications
privilege and its expressed need to confine it as narrowly as possible. Relying on
Nixon I, the Espy court identifies “the President’s Article II powers and
responsibilities as the constitutional basis of the presidential communications
privilege ... Since the Constitution assigns these responsibilities to the President
alone, arguably the privilege of confidentiality that derives from it also should be the107
President’s alone.” Again relying on Nixon I, the court pinpoints the essential
purpose of the privilege: “[Tlhe privilege is rooted in the need for confidentiality to
ensure that presidential decisionmaking is of the highest caliber, informed by honest
advice and knowledge. Confidentiality is what ensures the expression of ‘candid,
objective, and even blunt or harsh opinions’ and the comprehensive exploration of
all policy alternatives before a presidential course of action is selected.”108 The
limiting safeguard is that the privilege will apply in those instances where the
Constitution provides that the President alone must make a decision. “The
presidential communications privilege should never serve as a means of shielding
information regarding governmental operations that do not call ultimately for direct109
decisionmaking by the President.”


106 See, e.g., Kendall ex rel. Stokes v. United States, 37 U.S. (12 Pet.) 522, 612-613 (1838);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952); Myers v. United
States, 272 U.S. 52, 177 (1926)(Holmes, J., dissenting); National Treasury Employees
Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974).
107 121 F.3d at 748.
108 Id. at 750.
109 Id. at 752.

The District of Columbia Circuit’s 2004 decision in Judicial Watch, Inc. v.
Department of Justice110 appears to lend substantial support to the above-expressed
understanding of Espy. Judicial Watch involved requests for documents concerning
pardon applications and pardon grants reviewed by the Justice Department’s Office
of the Pardon Attorney and the Deputy Attorney General for consideration by
President Clinton.111 Some 4,300 documents were withheld on the grounds that they
were protected by the presidential communications and deliberative process
privileges. The district court held that because the materials sought had been
produced for the sole purpose of advising the President on a “quintessential and non-
delegable Presidential power” — the exercise of the President’s constitutional pardon
authority — the extension of the presidential communications privilege to internal
Justice Department documents which had not been “solicited and received” by the
President or the Office of the President was warranted.112 The appeals court reversed,
concluding that “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.”113
Guided by the analysis of the Espy ruling, the panel majority emphasized that
the “solicited and received” limitation “is necessitated by the principles underlying
the presidential communications privilege, and a recognition of the dangers of
expanding it too far.”114 Espy teaches, the court explained, that the privilege may be
invoked only when presidential advisers in close proximity to the President, who
have significant responsibility for advising him on non-delegable matters requiring
direct presidential decisionmaking, have solicited and received such documents or
communications or the President has received them himself. In rejecting the
Government’s argument that the privilege should be applicable to all departmental
and agency communications related to the Deputy Attorney General’s pardon
recommendations for the President, the panel majority held that:
Such a bright-line rule is inconsistent with the nature and principles of the
presidential communications privilege, as well as the goal of serving the public
interest .... Communications never received by the President or his Office are
unlikely to “be revelatory of his deliberations ... nor is there any reason to fear
that the Deputy Attorney General’s candor or the quality of the Deputy’s pardon
recommendations would be sacrificed if the presidential communications
privilege did not apply to internal documents .... Any pardon documents, reports
or recommendations that the Deputy Attorney General submits to the Office of
the President, and any direct communications the Deputy or the Pardon Attorney
may have with the White House Counsel or other immediate Presidential


110 365 F.3d 1108 (D.C. Cir. 2004). The panel split 2-1, with Judge Rogers writing for the
majority and Judge Randolph dissenting.
111 The President has delegated the formal process of review and recommendation of his
pardon authority to the Attorney General who, in turn, has delegated it to the Deputy
Attorney General. The Deputy Attorney General oversees the work of the Office of the
Pardon Attorney.
112 365 F.3d at 1109-12.
113 Id. at 1112, 1114, 1123.
114 Id. at 1114.

advisers will remain protected .... It is only those documents and
recommendations of Department staff that are not submitted by the Deputy
Attorney General for the President and are not otherwise received by the Office
of the President, that do not fall under the presidential communications
privilege.115
Indeed, the Judicial Watch panel makes it clear that the Espy rationale would
preclude cabinet department heads from being treated as being part of the President’s
immediate personal staff or as some unit of the Office of the President:
Extension of the presidential communications privilege to the Attorney General’s
delegatee, the Deputy Attorney General, and his staff, on down to the Pardon
Attorney and his staff, with the attendant implication for expansion to other
Cabinet officers and their staffs, would, as the court pointed out in In re Sealed
Case, pose a significant risk of expanding to a large swatch of the executive
branch a privilege that is bottomed on a recognition of the unique role of the116
President.
The Judicial Watch majority took great pains to explain why Espy and the case
before it differed from the Nixon and post-Watergate cases. According to the court,
“[u]ntil In re Sealed Case, the privilege had been tied specifically to direct117
communications of the President with his immediate White House advisors.” The
Espy court, it explained, was for the first time confronted with the question whether
communications that the President’s closest advisors make in the course of preparing
advise for the President and which the President never saw should also be covered
by the presidential privilege. The Espy court’s answer was to “espouse[ ] a ‘limited
extension’ of the privilege’ ‘down the chain of command’ beyond the President to his
immediate White House advisors only,” recognizing “the need to ensure that the
President would receive full and frank advice with regard to his non-delegable
appointment and removal powers, but was also wary of undermining countervailing
considerations such as openness in government .... Hence, the [Espy] court
determined that while ‘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 could118
not.”
The situation before the Judicial Watch court tested the Espy principles. While
the presidential decision involved — exercise of the President’s pardon power — was
certainly a non-delegable, core presidential function, the operating officials involved,
the Deputy Attorney General and the Pardon Attorney, were deemed to be too remote
from the President and his senior White House advisors to be protected. The court
conceded that functionally those officials were performing a task directly related to
the pardon decision, but concluded that an organizational test was more appropriate


115 Id. at 1117.
116 Id. at 1121-22.
117 Id. at 1116.
118 Id. at 1116-117.

for confining the potentially broad sweep that would result from a functional test.
Under the latter test, there would be no limit to the coverage of the presidential
communications privilege. In such circumstances, the majority concluded, the lesser
protections of the deliberative process privilege would have to suffice.119 That
privilege was found insufficient and the appeals court ordered the disclosure of the

4,300 withheld documents.


It may be noted that, in at least one analogous instance the White House
divulged documents sought by a congressional committee which argued the more
limited reading of Espy. When Espy was decided, the House Resources Committee
was in the midst of an inquiry of President Clinton’s utilization of the Antiquities Act
of 1906,120 which authorizes the President, in his discretion, to declare by public
proclamation objects of historic or scientific interest on federal lands to be national
monuments, by reserving parcels that “shall be confined to the smallest area
compatible with the proper care and management to the objects to be protected.” The
act establishes no special procedures for the decision to declare a national monument
and contains no provision for judicial review. Shortly before the 1996 presidential
election, President Clinton reserved 1.7 million acres in Utah by proclamation.
Central to the Committee’s inquiry as to the propriety and integrity of the
decisionmaking process that led to the issuance of the presidential proclamation were
the actions of the Council on Environmental Quality (CEQ), an office within the
Executive Office of the President with about the same degree of advisory proximity
as that of the White House Counsel’s Office. Requests for physical production of
documents from CEQ met with limited compliance: an offer to view 16 documents
at the White House. The Committee believed that it required physical possession in
order to determine the propriety of the process and issued a subpoena which was not
complied with on the return date.
During intense negotiations, the White House claimed the documents were
covered by the presidential communications privilege, even as defined by Espy. In
a letter to the Committee, the White House Counsel’s Office argued that the opinion
did not confine the privilege to just core Article II powers, but included presidential
decisionmaking encompassed within the Article II duty to take care that the laws be
faithfully executed. It asserted that since the President had the sole authority to
designate a monument by law, that decisional process, including deliberations among
and advice of White House advisers, was covered. The Committee in reply letters
disagreed, arguing that Espy would not encompass a statutory delegation of
decisional authority. On the eve of a scheduled Committee vote on a resolution of
contempt, the White House produced all the documents.121


119 Id. at 1118-24.
120 16 U.S.C. 431 (2000).
121 See 143 Cong. Rec. E2259-2272 (daily ed. November 9, 1997)(Remarks of Hon. James
V. Hansen presenting staff study of committee actions and documents in regard to the
establishment of the Grand Staircase-Escalante National Monument). See also Ruth Larson,
“White House Yields Papers on Utah Wilderness Decision,” Wash. Times, October 23,
1997, A3. Of course, the White House action cannot be deemed a concession of the legal
argument in the absence of an explanation for its decision to disclose the material.

The narrower reading of Espy by the House Committee also accommodates the
need of Congress for flexibility in assigning tasks for executive fulfillment. It is, of
course, the predominant practice of Congress to delegate the execution of laws to the
heads of departments and agencies. But there are occasions when the nature of the
decisionmaking is deemed so sensitive or important or unique that direct presence of
presidential authority is appropriate. Where the exercise of such authority derives
solely from the statutory delegation and does not find its basis in one of the so-called
“core” constitutional powers of the President, it is a reasonable expectation of the
Congress that it will be able to determine whether and how the legislative intent has
been carried out, just as it does with its assignments to the departments and agencies.
A view that any delegation of decisionmaking authority directly to the President will
thereby cloak it from congressional scrutiny is not only anomalous but arguably
counterproductive of interbranch coordination, cooperation and comity, as it would
discourage such delegations.122 Of course, further judicial development of the
principles enunciated in Espy may alter this view of its scope.
Recent Developments: George W. Bush Claims of Executive
Privilege
In early 2007, the House Judiciary Committee and its Subcommittee on
Commercial and Administrative Law commenced an inquiry into the propriety of the
termination and replacement of a number of United States Attorneys. Six hearings
and numerous interviews were held by the committees between March and June
2007, essentially focusing on testimony with respect to actions of present and former
Department of Justice (DOJ) officials and employees as well as DOJ documents
relating to the matter. On March 21, 2007, the House Subcommittee authorized
Chairman John Conyers, Jr. to issue subpoenas to a number of present and former
White House Officials for documents and testimony. On June 13, 2007, Chairman
Conyers issued subpoenas to White House Chief of Staff Joshua Bolten, as custodian
of White House documents, returnable on June 28, 2007, and to former White House
Counsel Harriet Miers, returnable on July 12, 2007.
On June 27, 2007, White House Counsel Fred F. Fielding, at the direction of
President Bush, advised the Chairmen of the House and Senate Judiciary Committees
that document subpoenas issued to the White House custodian of documents and to
two former White House officials, Sara M. Taylor, subpoenaed by the Senate
Judiciary Comittee, and Harriet Miers, relating to those Committees investigations
of the dismissal and replacement of nine U.S. attorneys in 2006, had been deemed by
the President subject to executive privilege and that the subpoena recipients have
been directed not to produce any documents. The Fielding letter also noted that the
testimony sought from Ms. Miers and Ms. Taylor was also subject to a “valid claim


122 The notion that a congressional delegation of administrative decisionmaking authority
is implicitly a concurrent delegation of authority to the President, is effectively countered
by Professor Kevin Stack in “The President’s Statutory Power to Administer the Laws,” 106
Colum. L. Rev. 263 (2006).

of Executive Privilege,” and would be asserted if the matter could not be resolved
before dates scheduled for their appearances.123
Accompanying the Fielding letter was a legal memorandum prepared by Acting
Attorney General Paul D. Clement for the President detailing the legal basis for a
claim of executive privilege.124 The memo identifies three categories of documents
being sought: (1) internal White House Communications; (2) communications by
White House Officials with individuals outside the Executive Branch, including
individuals in the Legislative Branch; and (3) communications between White House
and Justice Department officials.125 With respect to internal White House
communications, which are said to consist of discussions of “the wisdom” of removal
and replacement proposals, which U.S. Attorneys should be removed, and possible
responses to Congressional and media inquiries, such discussions are claimed to be
the “types of internal deliberations among White House officials [that] fall squarely
within the scope of executive privilege” since their non-disclosure “promote[s] sound
decisionmaking by ensuring that senior Government officials and their advisors may
speak frankly and candidly during the decisionmaking process,” citing U.S. v. Nixon.
Since, it is argued, what is involved is the exercise of the presidential power to
appoint and remove officers of the United States, a “quintessential and nondelegable
Presidential power” (citing Espy), the President’s protected confidentiality interests
“are particularly” strong in this instance. As a consequence, an inquiring
congressional committee would have to meet the standard established by the Senate
Select Committee decision requiring a showing that the documents and information
are “demonstrably critical to the responsible fulfillment of the Committee’s
function.”126 Thus, it is claimed, there is doubt whether the Committees have
oversight authority over deliberations essential to the exercise of this core
presidential power or that “their interests justify overriding a claim of executive
privilege as to the matters at issue.”127
With respect to category 2 matters involving communications by White House
officials with individuals outside the White House, the Clement memo asserts that
confidentiality interests undergirding the privilege are not diminished if the President
or his close advisors have to go outside the White House to obtain information to
make an “informed decision,” particularly about a core presidential power. Again,
Espy and Senate Select Committee are referred as supporting authority.
As to the final category, respecting communications between the Justice
Department and the White House concerning proposals to dismiss and replace U.S.
Attorneys, it is claimed that such communications “are deliberative and clearly fall
within the scope of executive privilege ... [T]he President’s need to protect


123 Letter dated June 28, 2007 to Chairman Conyers and Leahy from Fred F. Fielding,
Counsel to the President.
124 Memorandum, dated June 27, 2007, for the President from Paul D. Clement, Solicitor
General and Acting Attorney General (Clement Memo).
125 Clement Memo at 1.
126 Clement Memo at 2.
127 Id. at 3.

deliberations about the selection of U.S. Attorneys is compelling, particularly given
Congress’ lack of legislative authority over the nomination or replacement of U.S.
Attorneys,” citing Espy and Senate Select Committee.128 The privilege is asserted to
extend to White House - DOJ communications “that have been previously disclosed
to the Committees by the Department.” An argument that a waiver may have
occurred is contrary to “relevant legal principles [that] should and do encourage,
rather than punish, such accommodation[s] by recognizing that Congress’ need for
such documents is reduced to the extent similar materials have been provided
voluntarily as part of the accommodation process.” Since the Committees have these
documents, seeking the relevant communications would be cumulative under Senate
Select Committee.129 This rationale is argued to support the lack of any need for the
testimony of the former White House officials subpoenaed:
Congressional interest in investigating the replacement of U.S. Attorneys clearly
falls outside its core constitutional responsibilities and any legitimate interest
Congress may have in the disclosed communications has been satisfied by the
Department’s extraordinary accommodation involving the extensive production
of documents to the Committees, interviews, and hearing testimony concerning
these communications. As the D.C. Circuit has explained, because “legislative
judgements normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability,” Congress will rarely need or
be entitled to a “precise reconstruction of past events” to carry out its legislative130
responsibilities. Senate Select Comm., 498 F. 2d at 732
On June 29, 2007, Chairman Conyers and Senate Judiciary Committee
Chairman Patrick Leahy jointly responded to the Fielding letter and Clement
memorandum. Characterizing the White House stance as “based on blanket
executive privilege claims,” which makes it difficult for the Committees “to
determine where privilege truly does and does not apply,” the Committees demanded
that they be provided with a detailed privilege log that includes for each document
withheld a description of the nature, source, subject matter and date of the document;
the name and address of each recipient of an original or copy of the document and the
date received; the name and address of each additional person to whom any of the
contents of the document was disclosed, along with the date and manner of
disclosure; and the specific basis for the assertion of privilege. A deadline for receipt
of the privilege log was set for July 9, 2007.
On July 9, 2007, the White House Counsel refused to comply. On that same
date, counsel to Ms. Miers informed Chairman Conyers that pursuant to letters
received from the White House Counsel, Miers would not testify or produce
documents, and the next day, July 10, announced that Miers would not appear at all.
That same day the DOJ office of Legal Counsel (OLC) issued an opinion that “Ms.
Miers is [absolutely] immune from compulsion to testify before the Committee on


128 Id at 5-6.
129 Id. at 6.
130 Id. at 6-7.

this matter and therefore is not required to appear to testify about the subject.”131
Citing previous OLC opinions, the opinion asserts that since the President is the head
of one of the independent branches of the federal government, “If a congressional
committee could force the President’s appearance, fundamental separation of powers
principles –including the President’s independence and autonomy from Congress–
would be threatened.” As a consequence, “[t]he same separation of powers principles
that protect a President from compelled congressional testimony also apply to senior
presidential advisors” because such appearances would be tantamount to the
President himself appearing. The fact that Ms. Miers is a former counsel to the
President does not alter the analysis since, “a presidential advisor’s immunity is
derivative of the President’s.” Neither Ms. Miers nor Mr. Bolten complied on the
return dates of their subpoenas.
On July 12, 2007, the House Subcommittee met and Chairman Sánchez issued
a ruling rejecting Ms. Miers’ privilege claims with respect to failing to appear,
produce documents and testify, which was upheld by a 7-5 vote. On July 19 the
Subcommittee Chair ruled against Mr. Bolten’s privilege claims with respect to his
failure to produce documents, which was upheld by a 7-5 vote. On July 25, the full
Judiciary Committee voted, 21-17, to issue a report to the House recommending that
a resolution of contempt of Congress against Miers and Bolten be approved.
Thereafter, the White House announced that it would order the United States
Attorney for the District of Columbia not to present the contempt of Congress
citation for grand jury consideration.
The Judiciary Committee filed its Report formally reporting a contempt
violation to the House in November 2007.132 After further attempts at
accommodation failed, the matter was brought to the floor of the House on February
14, 2008, which voted 223 to 32 to hold Ms. Miers and Mr. Bolten in contempt of
Congress for their willful failure to comply with the Committee’s subpoenas. At the
same time the House passed three resolutions. H.Res. 979 directed the Speaker to
certify the report of the Judiciary Committee, detailing the refusals of Ms. Miers to
appear before, to testify before, and to produce documents to the Committee and Mr.
Bolten’s refusal to produce documents, as required by subpoenas, to the United
States Attorney for the District of Columbia for presentation to a grand jury pursuant
to 2 U.S.C. 192 and 194.133
H.Res. 980, in apparent anticipation that the criminal contempt citation would
not be presented to the grand jury by the U.S. Attorney, authorized the Chairman of
the Judiciary Committee to initiate civil judicial proceedings in federal court to seek
a declaratory judgment affirming the duty of any individual to comply with any
subpoena that is the subject of H.Res. 979 and to issue appropriate injunctions to
achieve compliance. The resolution also authorized the House General Counsel to


131 “Memorandum for the Counsel to the President Re: Immunity of Former Counsel to the
President from Compelled Congressional Testimony” from Principal Deputy Assistant
Attorney General, Office Legal Counsel, DOJ, dated July 10, 2007 (OLC Immunity
Opinion).
132 H.Rept. 110-423 110th Cong., 1st Sess. (2007).
133 H.Res. 979, 110th Cong. (February 14, 2008).

represent the Committee in any such litigation. H.Res. 982 adopted both H.Res. 979
and H.Res. 980.
On February 28, 2008, the Speaker certified the Committee’s Report to the U.S.
Attorney. On February 29, 2008, Attorney General Mukasey advised the Speaker that
“the Department will not bring the congressional contempt citations before a grand
jury or take any other action to prosecute Mr. Bolten or Ms. Miers.”
On March 10, 2008, the House General Counsel filed a civil action for
declaratory judgement and injunctive relief against Ms. Miers and Mr. Bolten.134 The
suit sought a declaration by the court that (1) Ms. Miers is not immune from the
obligation to appear before the Committee in response to a duly authorized, issued
and served Committee subpoena; (2) Ms. Miers and Mr. Bolten produce privilege
logs identifying all documents withheld on grounds of executive privilege; and (3)
Ms. Miers and Mr. Bolten’s claims are improper in the context of communications
not involving the President or undertaken directly in preparation for advising the
President and that Ms. Miers and Mr. Bolten’s claims of executive privilege are, in
any event, overcome by the Committee’s demonstrated, specific need for the
subpoenaed testimony and comments. In addition, the Committee sought an order
directing Ms. Miers to appear before the Committee to respond to questions and to
invoke executive privilege if and when appropriate; to have Ms. Miers and Mr.
Bolten provide detailed privilege logs with respect to documents claimed to be
privileged and for both to produce all non-privileged documents subject to the
subpoenas.
On April 10, 2008, the House General Counsel filed a Motion for Partial
Summary Judgment seeking a declaration that (1) Ms. Miers failure to appear at all
in response to the Committee’s subpoena was without legal justification; (2) that she
must appear before the Committee and assert privilege claims in response to
questions, as appropriate, but must testify about subjects not covered by privilege;
(3) that the failure of both Ms. Miers and Mr. Bolten to supply privilege logs with
respect to withheld documents is legally unjustified; and (4) that both be ordered to
provide detailed privilege logs with respect to documents claimed to be privileged
and to produce all relevant non-privileged documents.
On July 31, 2008, the district court essentially granted the Committee’s motion
for partial summary judgment in its entirety.135 The court’s lengthy opinion


134 Committee on the Judiciary, United States House of Representatives v. Harriet Miers and
Joshua Bolten, Case No. 08-00409 (D.D.C.) (JDB) (Miers).
135 The court declined to order Ms. Miers and Mr. Bolten to provide detailed privilege logs
with respect to documents claimed to be covered by executive privilege, holding that while
such logs “have great practical utility,” there is no applicable statute or controlling case law
that would provide “a ready ground by which to force the Executive to make such a
production strictly in response to a congressional subpoena.” Miers, slip opinion at 92
(emphasis in original). The court warned, however, that both the court “and the parties will
need some way to evaluate privilege assertions going forward in the context of this
litigation.” Id. The court particularly noted that if it has to decide the merits of a privilege
claim, the government “will need a better description of the documents than the one found
(continued...)

principally dealt with the Executive’s claims that the suit should be dismissed
because the Committee: (1) lacked standing, (2) had not stated a cause of action
authorizing the suit, and (3) was inappropriately involving the court in a dispute
between the political branches of a type of that traditionally has been resolved by
negotiation and accommodation by the parties. The court rejected the Executive’s
justiciability claims, finding both standing and an implied cause of action in the
Constitution’s institutional commitment to the Congress in Article I of “the power
of inquiry,” observing that the Supreme Court has consistently recognized that the
power carries with it the “process to enforce it” which is “an essential and
appropriate auxiliary to the legislative function,” and that “issuance of a subpoena
pursuant to an authorized investigation is ... an indispensable ingredient of law
making.”136 In rejecting the suggestion that the court exercise its equitable discretion
not to involve itself in a political dispute between the branches, the court observed
that numerous courts since the initial Watergate rulings had found it appropriate to
attempt to resolve subpoena disputes raising privilege and immunity questions in
both civil and criminal contexts involving the political branches in circumstances
where it appeared only judicial intervention could prevent “a stalemate that could
result in a paralysis of government.” The court noted that both parties conceded that
an impasse had been reached and observed:
...Although the identity of the litigants in this case necessitates that the Court
proceed with caution, that is not a convincing reason to decline to decide a case
that presents important legal questions. Rather than running roughshod over
separation of powers principles, the Court believes that entertaining this case will
reinforce them. Two parties cannot negotiate in good faith when one side asserts
legal privileges but insists that they cannot be tested in court in the traditional
manner. That is true whether the negotiating parties are private firms or the
political branches of the federal government. Accordingly, the Court will deny137
the Executive’s motion to dismiss.
Turning to the sole merits issue raised by the Committee’s motion for partial
summary judgement - - the Executive’s claim that present and past senior advisers
to the President are absolutely immune from compelled congressional process - - the
court’s conclusion was an unequivocal rejection of the government’s position:
The Executive cannot identify a single judicial opinion that recognizes absolute
immunity for senior presidential advisors in this or any other context. That


135 (...continued)
in Mr. Clement’s letter of June 27, 2007.” (The Clement letter is discussed in the text, supra,
at pp. 24-26). With this admonition, the court ordered that the defendants “shall provide to
the plaintiff a specific description of any documents withheld from production on the basis
of executive privilege consistent with the terms of the Memorandum Opinion issued on this
date.” Miers, Order at 1-2.
136 Miers, slip opinion at 36, citing McGrain v. Daugherty, supra, and Eastland v. United
States Servicemen’s Fund, supra.
137 Id. at 77 - 78. For an in-depth discussion of the implications and importance of the court’s
justiciability rulings, see CRS Report RL34097, Congress’ Contempt Power: Law, History,
Practice, and Procedure, by Morton Rosenberg and Todd B. Tatelman.

simple yet critical fact bears repeating: the asserted absolute immunity claim here
is entirely unsupported by existing case law. In fact, there is Supreme Court
authority that is all but conclusive on this question and that powerfully suggests
that such advisors do not enjoy absolute immunity. The Court therefore rejects138
the Executive’s claim of absolute immunity for senior presidential aides.
At the outset the court noted that a 1950 Supreme Court ruling in United States
v. Bryan139 established that if compliance with a congressional subpoena requirement
is ignored, “the great power of testimonial compulsion, so necessary to the effective
functioning of courts and legislatures, would be a nullity.”140 In attempting to explain
why compliance is to be excused in this instance, the Executive argued that since the
President himself is absolutely immune to compelled congressional testimony, close
advisers to the President himself must be regarded as his “alter ego” and be entitled
to the same absolute immunity. Forcing such close advisors to testify before
Congress would be tantamount to compelling the President to do so. The court
responded that the same line of argument had been rejected by the Supreme Court in
Harlow v. Fitzgerald,141 a suit for damages against senior White House aides arising
out of the defendants’ official actions. The aides claimed they were “entitled to a
blanket protection of absolute immunity as an incident of their offices as Presidential
aides.”142 Recognizing that absolute immunity had been extended to legislators,
judges, prosecutors and the President himself, the Supreme Court rejected extending
such immunity further, emphasizing that “[f]or executive officials in general,
however, our cases make plain that qualified immunity represents the norm.”143 The
High Court rejected the argument that it had accorded derivative immunity to
legislative aides in Speech or Debate cases as “sweep[ing] too far” noting that even
cabinet members “are not entitled to absolute immunity.”144 The Harlow Court made
the concession that a presidential aide could be accorded absolute immunity if it was
shown that the responsibilities of his office embraced a sensitive function such as
foreign policy or national security and that he was discharging the protected functions
when performing the act for which liability is asserted.145 The Miers district court
concluded that in this matter, since there was no involvement of national security or
foreign policy concerns, neither Ms. Miers’ nor Mr. Bolten’s close proximity to the
President is sufficient under Harlow to provide either absolute or qualified
immunity.146


138 Id. at 78.
139 339 U.S. 323 (1950).
140 Id. at 331.
141 457 U.S. 800 (1982).
142 Id. at 808.
143 Id. at 807.
144 Id. at 810.
145 Id. at 812-813.
146 Miers, slip opinion at 81-82, 87.

In response to the Executive’s claim that without absolute immunity there would
be a “chilling effect” on the candid and frank advice advisers would provide a Chief
Executive, the court stated:
The prospect of being hauled in front of Congress – daunting as it may be –
would not necessarily trigger the chilling effect that the Executive predicts.
Senior executive officials often testify before Congress as a normal part of their
jobs, and forced testimony before Congress does not implicate the same concern
regarding personal financial exposure as does a damages suit. Significantly, the
Committee concedes that an executive branch official may assert executive
privilege on a question-by-question basis as appropriate. That should serve as an
effective check against public disclosure of truly privileged communications,
thereby mitigating any adverse impact on the quality of advice that the President
receives ... . In any event, the historical record produced by the Committee
reveals that senior advisors to the President have often testified before Congress
subject to various subpoenas dating back to 1973. See Auerbach Decl. ¶¶ 2-3.
Thus, it would hardly be unprecedented for Ms. Miers to appear before Congress
to testify and assert executive privilege where appropriate. Still, it is noteworthy
that in an environment where there is no judicial support whatsoever for the
Executive’s claim of absolute immunity, the historical record also does not
reflect the wholesale compulsion by Congress of testimony from senior147
presidential advisors that the executive fears.
Next, the district court rejected the claim that Nixon v. United States established
that a president’s immunity is qualified, and not absolute, only when judicial
resolution of a criminal justice matter concerned.148 Here, the court emphasized, the
Executive argued that what was involved was a “peripheral” exercise of Congress’
power, not a core function of another branch. The court responded:
...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.” Bryan 339 U.S. at 331 (emphasis added). Thus, Congress’s use of
( and need for vindication of) its subpoena power in this case is not 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 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.... [A] claim of absolute
immunity from compulsory process cannot be erected by the Executive as a
surrogate for the claim of absolute privilege already firmly rejected by the courts.
Presidential autonomy, such as it is, cannot mean that the Executive’s actions are
totally insulated from scrutiny by Congress. That would eviscerate the149


Congress’s oversight functions.
147 Id. at 83-84 (Emphasis in original).
148 Nixon I, supra, 418 U.S. at 707-708.
149 Id. at 84-85.

The court recognized that the effect of a claim of absolute privilege for close advisors
was to make the President the judge of the parameters of his own qualified privilege.
“Permitting the Executive to determine the limits of its own privilege would
impermissibly transform the presumptive privilege into an absolute one, yet that is
what the Executive seeks through its assertion of Ms. Miers absolute immunity from
compulsory process. That proposition is untenable and cannot be justified by appeals
to Presidential autonomy.”150
Finally, the district court rejected the government’s fall-back position: that even
if Ms. Miers is not entitled to absolute immunity, she should be accorded qualified
immunity. The court dismissed the argument, relying on the requirements established
by Harlow:
“[T]his inquiry does not involve sensitive topics of national security or foreign
affairs. Congress, moreover, is acting pursuant to a legitimate use of its
investigative authority. Notwithstanding its best efforts, the Committee has been
unable to discover the underlying causes of the forced terminations of the U.S.
Attorneys. The Committee has legitimate reasons to believe that Ms. Miers’s
testimony can remedy that dificiency. There is no evidence that the Committee
is merely seeing to harass Ms. Miers by calling her to testify. Importantly,
moreover, Ms. Miers remains able to assert privilege in response to any specific
question or subject matter. For its part, the Executive has not offered any
independent reasons that Ms. Miers should be relieved from compelled
congressional testimony beyond its blanket assertion of absolute immunity. The
Executive’s showing, then, does not support either absolute or qualified151
immunity in this case.”
The court concluded that its rejection of a claim of absolute immunity rested on
two premises: Such a claim would transform the President’s qualified immunity into
an absolute one; and if such a claim were to prevail, it would cover even non-
privileged executive information:
There are powerful reasons supporting the rejection of absolute immunity as
asserted by the Executive here. If the Court held otherwise, the presumptive
presidential privilege could be transformed into an absolute privilege and
Congress’ legitimate interest in inquiry could be easily thwarted. Indeed, even
the Speech or Debate context - - which has an explicit textual basis and confers
absolute immunity - - Members of Congress must still establish that their actions
were legislative in nature before invoking the protection of the Clause. See, e.g.
Rayburn 497 F. 3d at 660; Jewish War Veterans of the U.S. of Am. v. Gates, 506
F. Supp. 2d 30, 54 (D.D.C. 2007). Members cannot simply assert, without more,
that the Speech or Debate Clause shields their activities and thereby preclude all
further inquiry. Yet that is precisely the treatment that the Executive requests
here.
Similarly, if the Executive’s absolute immunity argument were to prevail,
Congress could be left with no recourse to obtain information that is plainly not
subject to any colorable claim of executive privilege. For instance, surely at least


150 Id. at 85
151 Id. at 89.

some of the questions that the Committee intends to ask Ms. Miers would not
elicit a response subject to an assertion of privilege; so too, for responsive
documents, many of which may even have been produced already. The
Executive’s proposed absolute immunity would thus deprive Congress of even152
non-privileged information. That is an unacceptable result.
On August 7, 2008, the Justice Department noted its intent to appeal the ruling
and requested that the court stay its order directing compliance with the subpoena
until its appeal is resolved. The district court’s response to the stay request is
pending.
The Miers/Bolten claim of executive privilege was the third of six such
invocations by the Bush Administration.153 The first was asserted by President Bush
on December 12, 2001, directing Attorney General Ashcroft to refuse to comply with
document subpoenas issued by the House Government Reform Committee as part of
the investigation of alleged law enforcement corruption in the FBI’s Boston Field
Office over a period of almost 30 years. Following two hearings in which the
validity of the privilege claim was the central issue, testimony presenting
overwhelming evidence that similar DOJ documents and testimony had been
provided in the face of investigative demands by jurisdictional committees for over
85 years, despite claims of interference with prosecutorial deliberations, and with a
credible threat of a successful contempt vote on the floor of the House, the
documents were relinquished.154
The second claim of privilege, apparently asserted on behalf of the President by
White House Counsel Alberto Gonzales, occurred during the Judicial Watch
litigation over the release of some 4,300 pardon documents that were in the custody
of the Pardon Attorney in the Justice Department and that had never been requested
by White House officials or the President. The panel majority held that in light of the
Espy ruling, the presidential communications privilege was inapplicable and ordered
the documents to be released to the requesters.
The President has made three additional claims of executive privilege that are
still unresolved.155 One involves a continuation of the House Judiciary Committee’s
investigation of the removal and replacement of nine U.S. Attorneys. On July 10,
2008, Karl Rove, a former White House Deputy Chief of Staff, refused to comply
with a subpoena requiring his appearance for testimony before its Subcommittee on
Commercial and Administrative Law, claiming absolute immunity based on opinions
and directions from the White House and the Department of Justice. His claims of
privilege were rejected by the Subcommittee. On July 30, 2008, the full Committee,
by a vote of 20-14, approved a report recommending that Mr. Rove be cited for


152 Id. at 95
153 See Appendix.
154 See, “Everything Secret Degenerates: The FBI’s Use of Murderers and Informants,”
H.Rept. 108-414, 108th Cong. 2nd Sess. 121-134 (2004). See also, CRS Report RL34197,
Congressional Investigations of the Department of Justice, 1920-2007: History, Law, and
Practice, by Morton Rosenberg.
155 See Appendix.

contempt by the House. The recommendation has not yet been forwarded for floor
action.
Privilege claims have been made by the President with respect to three
subpoenas issued by the House Oversight and Government Reform Committee in
April and May 2008, to the Administrator of the Environmental Protection Agency
(EPA) and the Office of Information and Regulatory Affairs of the Office of
Management and Budget (OIRA). The subpoena to OIRA and one of the subpoenas
to the Administrator of EPA seek documents related to the EPA’s promulgation of
a regulation revising national ambient air quality standards for ozone on March 12,
2008. The other subpoena directed to the EPA Administrator seeks documents
reflecting communications between EPA and OIRA concerning the agency’s decision
to deny a petition by California for a waiver from federal preemption to enable it to
regulate greenhouse gas emissions from motor vehicles. The Attorney General on
June 19, 2008, advised the President that some 25 of the documents covered by the
subpoena would be properly covered by an assertion of executive privilege. On June
20, 2008, the EPA Administrator advised the chairman of the Committee that he had
been directed by the President to assert executive privilege with respect to the
withheld documents. No action has yet been taken by the Committee.
The most recent presidential privilege claim, asserted on July 16, 2008, at the
behest of the Attorney General, involves a House Oversight and Government Reform
Committee subpoena to the Department of Justice (DOJ) for documents concerning
DOJ’s investigation by a Special Counsel concerning the disclosure of Valerie Plame
Wilson’s identity as an employee of the Central Intelligence Agency. The documents
sought and withheld include the FBI reports of the Special Counsel’s interviews with
the Vice President and senior White House staff; handwritten notes taken by the
Deputy National Security Advisor during conversations with the Vice President and
senior White House officials; and other documents provided by the White House
during the course of the investigation. The Attorney General’s request to the
President for a formal claim of privilege was spurred by the Committee’s scheduling
of a full Committee meeting to consider a resolution citing him for contempt of
Congress.156
Concluding Observations
As indicated in the above discussion, recent appellate court rulings cast
considerable doubt on the broad claims of privilege posited by OLC in the past and
now reiterated by the Clement Memo and the July 10, 2007, OLC opinion on
absolute witness immunity. Taken together, Espy and Judicial Watch arguably have
effected important qualifications and restraints on the nature, scope and reach of the
presidential communications privilege. As established by those cases, and until
reviewed by the Supreme Court, the following elements appear to be essential to
appropriately invoke the privilege:


156 See letter to the Hon. Henry A. Waxman from Keith B. Nelson, Principal Deputy
Assistant Attorney General, Office of Legislative Affairs, DOJ, dated July 16, 2008,
attaching the Attorney General’s request letter to the President dated July 15, 2008. These
letters are available from the author.

1. The protected communication must relate to a “quintessential and non-


delegable presidential power.” Espy and Judicial Watch involved the
appointment and removal and the pardon powers, respectively. Other core,
direct precedential decisionmaking powers include the Commander-in-
Chief power, the sole authority to receive ambassadors and other public
ministers, and the power to negotiate treaties. It would arguably not
include decisionmaking with respect to laws that vest policymaking and
administrative implementation authority in the heads of department and
agencies or which allow presidential delegations of authority.
2. The communication must be authored or “solicited and received” by a
close White House advisor (or the President). The judicial test is that an
advisor must be in “operational proximity” with the President. This
effectively means that the scope of the presidential communications
privilege extends only to the administrative boundaries of the Executive
Office of the President and the White House.
3. The presidential communications privilege remains a qualified privilege
that may be overcome by a showing that the information sought “likely
contains important evidence” and the unavailability of the information
elsewhere by an appropriate investigating authority. The Espy court found
an adequate showing of need by the Independent Counsel; while in
Judicial Watch, the court found the privilege did not apply, and the
deliberative process privilege was unavailing.
Definitively applying the teachings of Espy and Judicial Watch to current
withholding claims in a context not yet fully developed may be premature. However,
the recent district court ruling in Miers, unequivocally rejecting the claim of absolute
witness immunity and adopting the Committee’s argument that Supreme Court’s
ruling in United States v. Nixon allows only a qualified constitutional privilege that
is presumptive when asserted, but which may be overcome by a proper showing of
need elsewhere by an authorized investigatory body such as a jurisdictional
congressional committee; and the court’s further recognition that subsequent
Supreme Court and appellate court rulings have reiterated the qualified nature of the
privilege,157 may be a clear indication that the Committee’s position is on firm legal
grounds. It may be noted that the Miers opinion approvingly cited the Espy ruling
five times with respect to doctrinal trends and interpretations concerning the
presidential communications privilege, further reinforcing the notion that Espy is the
controlling law in the District of Columbia Circuit.158 Also significant in the Miers
opinion is the explicit rejection of the central legal position propounded by the
Clement and OLC positions with respect to the claimed sufficiency of the nature and
scope of the disclosures respecting the withheld documents that will be necessary to
support the President’s qualified privilege. If the initial Miers ruling is upheld on
appeal, the next phase of the litigation would directly confront the applicability and


157 Id. at 77 - 78. For an in-depth discussion of the implications and importance of the court’s
justiciability rulings, see CRS Report RL34097, Congress’ Contempt Power: Law, History,
Practice, and Procedure, by Morton Rosenberg and Todd B. Tatelman.
158 See Miers slip opinion at 32,33,34 note 15,34,85 note 35 and 88 note 37.

effect of Espy and Judicial Watch on the nature, scope, and reach of the presidential
communications privilege.



Appendix
Presidential Claims of Executive Privilege From the Kennedy
Administration Through the George W. Bush Administration.
Following is a brief summary recounting of assertions of presidential claims of
executive privilege from the Kennedy Administration through the George W. Bush
Administration.

1. Kennedy. President Kennedy established the policy that he, and he alone,


would invoke the privilege. Kennedy appears to have utilized the privilege twice
with respect to information requests by congressional committees. In 1962, the
President directed the Secretary of Defense not to supply the names of individuals
who wrote or edited speeches requested by a Senate subcommittee investigating
military Cold War education and speech review policies. The chairman of the
subcommittee acquiesced to the assertion. The President also directed that his
military adviser, General Maxwell Taylor, refuse to testify before a congressional
committee examining the Bay of Pigs affair. See Rozell, text note 1, at 40-41.
2. Johnson. President Johnson, although he announced that he would follow
the Kennedy policy of personal assertion of executive privilege, apparently did not
do so in practice. Rozell, supra, at 41-42, catalogues three instances in which
executive officials refused to comply with congressional committee requests for
information or testimony which involved presidential actions, but did not claim they
were directed to do so by the President.
3. Nixon. President Nixon asserted executive privilege six times. He directed
Attorney General Mitchell to withhold FBI reports from a congressional committee
in 1970. In 1971, Secretary of State Rogers asserted privilege at the President’s
direction to withhold information from Congress with respect to military assistance
programs. A claim of privilege was asserted at the direction of the President to
prevent a White House advisor from testifying on the IT&T settlement during the
Senate Judiciary Committee’s consideration of the Richard Kleindienst nomination
for Attorney General in 1972. Finally, President Nixon claimed executive privilege
three times with respect to subpoenas for White House tapes relating to the
Watergate affair: once with respect to a subpoena from the Senate Select Committee;
again with respect to a grand jury subpoena for the same tapes by Special Prosecutor
Archibald Cox; and then, with respect to a jury trial subpoena for 64 additional tapes
issued by Special Prosecutor Leon Jaworski. Rozell, supra, at 57-62.
4. Ford and Carter. President Ford directed Secretary State Kissinger to
withhold documents during a congressional committee investigation relating to State
Department recommendations to the National Security Council to conduct covert
activities in 1975. President Carter directed Energy Secretary Duncan to claim
executive privilege in the face of a committee’s demand for documents relating to the
development and implementation of a policy to impose a petroleum import fee.
Rozell, supra at 77-82; 87-91.



5. Reagan. President Reagan directed the assertion of executive privilege
before congressional committees three times: by Secretary of the Interior James Watt
with respect to an investigation of Canadian oil leases (1981-82); by EPA
Administrator Ann Burford with respect to Superfund enforcement practices (1982-
83); and by Justice William Rehnquist during his nomination proceedings for Chief
Justice with respect to memos he had written when he was Assistant Attorney for the
Office of Legal Counsel in the Department of Justice (1986). Rozell, supra, at 98-

105.


6. Bush, George H. W. President Bush asserted privilege only once, in
1991, when he ordered Defense Secretary Cheney not to comply with a congressional
subpoena for a document related to a subcommittee’s investigation of cost overruns
in, and cancellation of, a Navy aircraft program. Rozell, supra, at 108-119.
7. Clinton. President Clinton apparently discontinued the policy of issuing
written directives to subordinate officials to exercise executive privilege. Thus, in
some instances, it is not totally clear when a claim of privilege by a subordinate was
orally directed by the President even if it was shortly withdrawn. The following
documented assertions may arguably be deemed formal invocations. Four of the
assertions occurred during grand jury proceedings. We list the individual assertions
and briefly identify them.
i.Kennedy Notes (1995)(executive privilege initially raised but never
formally asserted)(Senate Whitewater investigation). S.Rept. 104-

191, 104th Cong., 1st Sess. (1995).


ii.White House Counsel Jack Quinn/Travelgate investigations
(1996)(House Government Reform). H.Rept. 104-598, 104th Cong.,

2d Sess. (1996).


iii.FBI-DEA Drug Enforcement Memo (1996)(House Judiciary)
iv.Haiti/Political Assassinations Documents (1996)(House International
Relations). th
v.In re Grand Jury Subpoena Duces Tecum, 112 F. 3d 910 (8 Cir.
1997)(executive privilege claimed and then withdrawn in the district
court. Appeals court rejected applicability of common interest
doctrine to communications with White House counsel’s office
attorneys and private attorneys for the First Lady).
vi.Espy, 121 F. 3d 729 (D.C. Cir. 1997)(Espy case)(executive privilege
asserted but held overcome with respect to documents revealing false
statements).
vii.In re Grand Jury Proceedings, 5 F. Supp. 2d 21 (D.D.C.
1998)(executive privilege claimed but held overcome because
testimony of close advisors was relevant and necessary to grand jury
investigation of Lewinski matter and was unavailable elsewhere).
The September 9, 1998, Referral to the House of Representatives by Independent
Counsel Kenneth Starr detailed the following previously undisclosed presidential
claims of executive privilege (viii - xiii) before grand juries that occurred during the
Independent Counsel’s investigations of the Hubbell and Lewinski matters:



viii.Thomas “Mack” McLarty (1997)(claimed at direction of President
during Hubbell investigation but withdrawn prior to filing of a motion
to compel).
ix.Nancy Hernreich (claimed at direction of President but withdrawn
prior to March 20, 1998 hearing to compel).
x.Sidney Blumenthal (claim rejected by District Court, 5 F. Supp. 2d 21
(D.D.C. 1998) dropped on appeal).
xi.Cheryl Mills (claimed on August 11, 1998).
xii.Lanny Breuer (claimed on August 4, 1998 and denied by Judge
Johnson on August 11). In re Grand Jury Proceeding. Unpublished
Order (Under Seal) (August 11, 1998).
xiii.Bruce Lindsey (claimed on August 28, 1998).
H. Doc. 105-310, 105th Cong, 2d Sess. 206-209 (1998).
xiv.FALN Clemency (claimed at direction of President by Deputy
Counsel to the President Cheryl Mills on September 16, 1999 in
response to subpoenas by House Government Reform Committee).
8. Bush, George W. President Bush has thus far asserted executive privilege
six times, once by written directive to the Attorney General, and twice by apparent
oral directives to subordinate executive officials to claim the privilege.
i.President Bush, on December 12, 2001, ordered Attorney General
Ashcroft not to comply with a congressional subpoena, for documents
related to a House Committee’s investigation of corruption in the
FBI’s Boston regional office. The documents were ultimately released
shortly after the conduct of the oversight hearings by the Committee.
H.Rept. 108-414, 108th Cong., 1st Sess. (2004).
ii.Judicial Watch Inc. v. Department of Justice, 365 F. 3d. 1108 (D.C.
Cir. 2004) (Rejecting the claimed applicability of the presidential
communications privilege to pardon documents sought under FOIA
from DOJ’s Office of the Pardon Attorney).
iii. Removal and Replacement of U.S. Attorneys (2007). At the direction
of the President, on June 28, 2007, the White House Counsel advised
the House and Senate Judiciary Committees that subpoenas issued for
documents and testimony relating to the firing of U.S. Attorneys to
former White House Counsel Harriet Miers and Chief of Staff Joshua
B. Bolten in 2006 were subject to a claim of executive privilege and
that these present and former White House officials would be ordered
not to comply with either the document demands or to appear at a
hearing. Miers and Bolten were voted in contempt by the House on
February 14, 2008, and on February 28, the Speaker transmitted the
contempt citation to the U.S. Attorney for the District of Columbia
for presentation to the grand jury. The Attorney General directed the
U.S. Attorney not to present the citation. On March 10, 2008, the
House Judiciary Committee initiated a civil suit seeking declaratory
and injunctive relief to enforce the subpoenas. Committee on the



Judiciary v. Miers and Bolten, Case No. 08-00409 (D.D.C.). On July
31, 2008, the District Court ruled, inter alia, that “The Executive’s
current claim of absolute immunity from compelled congressional
process for senior precedential aides is without any support in the
case law.” The court declared that Ms. Miers “is legally required to
testify pursuant to a duly issued congressional subpoena,” and
ordered Ms. Miers and Mr. Bolten to produce all subpoenaed non-
privileged documents and to provide specific descriptions of all
documents withheld on the basis fo executive privilege. The
Department of Justice filed a notice of appeal to the D.C. Circuit on
August 7, 2008, and requested that the district court stay its order to
testify and produce documents.
iv.On April 9, and May 5, 2008, the House Oversight and Government
Reform Committee issued three subpoenas, two to the Administrator
of the Environmental Protection Agency (EPA) and one to the Office
of Information and Regulatory Affairs of the Office of Management
and Budget (OIRA). The subpoena to OIRA and one of the subpoenas
to the Administrator of the EPA seek documents related to EPA’s
promulgation of regulations serving national ambient air quality
standards for ozone on March 12, 2008. The other subpoena directed
to the EPA Administrator seeks documents reflecting
communications between EPA and OIRA concerning the agency’s
decision to deny a petition by California for a waiver from federal
preemption to enable te state to regulate greenhouse gas emissions
from motor vehicles. The Attorney General on June 19, 2008 advised
the President that some 25 of the documents covered by the subpoena
would be properly covered by an assertion of executive privilege. On
June 20, 2008, the EPA Administrator advised the Chairman of the
Committee that he had been directed by the President to assert
executive privilege with respect to the withheld documents. No action
has yet been taken by the Committee.
v.Removal and Replacement of U.S. Attorneys. On July 10, 2008, Karl
Rove, a former White House Deputy Chief of Staff, refused to
comply with a subpoena requiring his appearance before the House
Judiciary Committee’s Subcommittee on Commercial and
Administrative Law, claiming absolute immunity on the basis of
White House and Department of Justice opinions and directions. By
a vote of 7-1 his claims of privilege were rejected by the
Subcommittee. On July 30, 2008, the full Judiciary Committee, by a
vote of 20-14, approved a report recommending that Mr. Rove be
cited for contempt by the House. The Judiciary Committee’s
recommendation has not yet been forwarded to the House for action.
vi.Special Counsel’s Investigation of Revelations of CIA Agent’s
Identity. On July 16, 2008, the President directed the Attorney
General (at the behest of the Attorney General) to assert executive
privilege with respect to a House Oversight and Government Reform
Committee subpoena to the Department of Justice (DOJ) for



documents concerning DOJ’s investigation by a Special Counsel
concerning Valerie Plame Wilson’s identity as an employee of the
Central Intelligence Agency. The documents sought and withheld
include FBI reports of the Special Counsel’s interviews with the Vice
President and senior White House staff: handwritten notes taken by
the Deputy National Security Advisor during conversations with the
Vice President and senior White House officials; and other
documents provided by the White House during the course of the
investigation. The Attorney General’s request to the President for a
formal claim of privilege was spurred by the Committee’s scheduling
of a meeting on July 16, 2008, to consider a resolution citing him for
contempt of Congress. As of this date there has been no Committee
response to the claim of privilege.