Why does executive privilege exist

Bar opinion. The deliberative process privilege permits government agencies to withhold documents and testimony relating to policy formulation from the courts. The privilege was designed to enable executive branch officials to seek a full and frank discussion of policy options with staff without risk of being held to account for rejected proposals. In addition, they may also argue that the privilege protects against premature disclosure of proposed policies before the agency fully considers or adopts them.

Agencies may further argue that the privilege prevents the public from confusing matters merely considered or discussed during the deliberative process with those that constitute the grounds for a policy decision. These arguments, however, do not necessarily pertain to Congress in its oversight and legislative roles. Such a broad application of the privilege would encourage agencies to disclose only materials that support their positions and withhold those with flaws, limitations, unwanted implications, or other embarrassments.

Broad application of the deliberative process privilege to congressional investigations would also induce executive branch officials, including attorneys, to claim that oversight would dissuade them from giving frank opinions, or discourage others from seeking such advice. Agencies often claim the privilege to forestall inquiries while they develop substantive rules.

As with claims of attorney-client privilege and work-product immunity, congressional practice has been to allow committees discretion over acceptance of deliberative process claims. Other court rulings and congressional practices have recognized the overriding necessity of an effective legislative oversight process.

As discussed in detail in Chapter 5, the presidential communications privilege is a constitutionally based doctrine that protects communications between the president and his or her immediate advisers in the Office of the President from disclosure. The D. The court of appeals held in Espy that the deliberative process privilege. A congressional committee merely needs to show that it has jurisdiction and authority, and that the information sought is necessary to its investigation to overcome this privilege.

A plausible showing of fraud, waste, abuse, or maladministration would conclusively overcome an assertion of privilege. On the other hand, the deliberative process privilege covers a broader array of information. Whereas the presidential communications privilege covers only communications between the president and high-ranking White House advisers, the deliberative process privilege applies to executive branch officials generally. Even before Espy , courts and committees consistently countered agency attempts to establish a privilege that thwarted congressional oversight efforts.

Congress has vastly greater powers of investigation than those of citizen FOIA requesters. Circuit in Murphy v. The disquieting ruling in the Fast and Furious litigation and its immediate and long-range disruptive consequences for effective investigate oversight demands closer, albeit somewhat repetitive, examination.

The binding law with respect to executive privilege in the D. Those decisions made an unequivocal distinction between the constitutionally-based presidential communications privilege and the common law deliberative process privilege, which the presiding judge in COGR v.

Lynch ignored. While both have common general goals—to protect in some degree sensitive internal executive deliberations—and both are qualified privileges, the resemblance for purposes of legal significance and impact ends there.

Historically, Congress has been recognized as the initial determiner of its own institutional rights and prerogatives, particularly for matters directly or indirectly related to oversight. Since the s—with the express acquiescence of the Justice Department—all subpoena demands by the Justice Department to members or component entities must first be processed and reviewed by House and Senate leadership and counsel.

The court emphasized that a critical purpose of the clause is to prevent intrusions into the legislative process. Circuit Court of Appeals. Private parties and agencies often assert that yielding to committee demands for material arguably covered by the attorney- client, work-product, or deliberative process privileges will waive those privileges in other forums.

Applicable case law, however, is to the contrary. When a congressional committee compels the production of a privileged communication through a properly issued subpoena, it does not prevent the assertion of the privilege elsewhere, 95 as long as it is shown that the compulsion was in fact resisted.

The history of congressional investigations of DOJ covers a broad scope of congressional inquiries, including committee requests for:. In response, congressional inquiries into Justice Department operations have been frequently met with claims that such inquiries:.

As a result, the Justice Department has often refused to supply internal documents or testimony sought by jurisdictional committees. These lessons, outlined in detail below, should guide future committees in determining whether to undertake similar probes of DOJ or other executive agencies, as well as inform them about the scope and limits of their investigative prerogatives and the practical problems of such undertakings.

The outcomes of these inquiries provide formidable practice precedents which will allow committees to effectively engage uncooperative agencies. The Congressional Research Service review of oversight of the Justice Department over the last 95 years is a particularly instructive tool. This requirement to cooperate in investigations has applied even when there is ongoing or expected litigation. A number of these investigations spawned seminal Supreme Court rulings that today provide the foundation for the broad congressional power of inquiry.

All were contentious and involved Department claims that committee demands for agency documents and testimony were precluded either on the basis of constitutional or common law privilege or policy. To obtain documents and testimony, an inquiring committee need only show that the information sought is:.

Despite objections by an agency, either house of Congress, or its committees or subcommittees, may obtain and publish information it considers essential for the proper performance of its constitutional functions. There is no court precedent that requires committees to demonstrate a substantial reason to believe wrongdoing occurred before seeking disclosures with respect to the conduct of specific criminal and civil cases, whether open or closed.

Indeed, the case law is quite to the contrary. During the inquiries covered by the CRS compilation, committees sought and obtained a wide variety of evidence, including:.

Also, those investigations encompassed virtually every component of DOJ, including its sensitive Public Integrity Section and its Office of Professional Responsibility. They also covered all levels of officials and employees in Main Justice and field offices, from attorneys general down to subordinate line personnel. There have been only four formal presidential assertions that executive privilege required withholding internal DOJ documents sought by a congressional subpoena.

Two of those claims were ultimately abandoned by the president; one was not acted on further by a House committee before the end of the th Congress; and one is pending resolution before an appeals court. The consequences of these historic inquiries at times have been profound and far-reaching. They have led directly to important legislation and the promulgation of internal administrative rules to remedy problems discovered and to the resignations Harry M.

Daugherty, J. Howard McGrath, Alberto R. Gonzales and convictions Richard Kleindienst, John Mitchell of five attorneys general.

Despite the broad extent of their constitutional power to access deliberative processes, committees have generally limited themselves due to prudential considerations. Congressional committees typically weigh legislative need, public policy, and the statutory duty of committees to conduct oversight, against the potential burdens imposed on an agency if deliberative process matter is publicly disclosed.

Over time, Congress has been generally faithful to these prudential considerations. The reasons advanced by the executive branch for declining to provide information to Congress about open and closed civil and criminal proceedings have included:.

Historically, DOJ has continued to assert such objections. More recently, during the George W. Thus, the executive branch has resisted congressional efforts to seek testimony by lower-level officers or employees without presidential authorization.

Instead, the courts have granted additional time or a change of location for a trial to deal with the publicity problem. Thus, the courts have recognized that the cases pose a choice for the Congress: congressionally generated publicity may result in harming the prosecutorial effort of the executive; but access to information under secure conditions can fulfill the congressional power of investigation.

They make that decision. It is not a judicial decision, or a legal decision, but a political decision of the highest importance. However, if this concern were permitted to block congressional inquiries, this would prevent Congress from performing a major portion of its constitutionally mandated oversight.

Congressional inquiries into foreign affairs and military matters call for information on strategy and assessment of weaknesses in national security matters; congressional probes into waste, fraud, and inefficiency in domestic operations call for information on strategy and weaknesses.

For Congress to forego such inquiries would be an abandonment of its oversight duties. The best way to correct either bad law or bad administration is to closely examine the methods and strategies that led to the mistakes. The many examples of congressional probes recounted in the CRS compilation demonstrate how important and effective proper congressional oversight can be.

The DOJ Office of Professional Responsibility OPR , which monitors the conduct of Department personnel, is notable for its revelations of a number of sensitive, previously undisclosed internal investigations in the face of extraordinary agency resistance. The subcommittee, chaired by Senator Arlen Specter, held 14 days of hearings in which it heard testimony from 62 witnesses, including DOJ, FBI, and Treasury officials, line attorneys and agents, obtained various internal reports from these agencies, and issued a final report.

The most important of these documents was the report of the Ruby Ridge Task Force. Marshals, and the U. The task force recommended that the matter be referred to a prosecutorial component of the department for a determination as to whether a criminal investigation was appropriate. OPR reviewed the task force report and transmitted the report to the deputy attorney general with a memorandum that dissented from the recommendation that the shooting of Vicky Weaver by the HRT member be reviewed for prosecutorial merit.

The deputy attorney general referred the task force recommendations for prosecutorial review to the criminal section of the civil rights division, which concluded that there was no basis for criminal prosecution. In the past, the executive frequently has made the broad claim that prosecution is an inherently executive function and that congressional access to information related to the exercise of that function is thereby limited.

Under this view, matters of prosecutorial discretion are off-limits to congressional inquiry, and access demands are viewed as interfering with the discretion traditionally enjoyed by the prosecutor. However, court decisions have not upheld this view and have permitted congressional inquiries into prosecutorial decisions.

Morrison v. The Supreme Court has rejected the notion that prosecutorial discretion in criminal matters is an inherent or core executive function. In Morrison v. In United States ex rel Kelly v. The Boeing Co. Prosecution is not a core or exclusive function of the executive, but oversight is a constitutionally mandated function of Congress; therefore, a claim of executive privilege to protect the ability to prosecute a case would likely fail.

Additionally, congressional oversight and access to documents and testimony, unlike the action of a court, cannot stop a prosecution or set limits on the management of a particular case. Access to information by itself would not seem to disturb the authority and discretion of the executive branch to decide whether to prosecute a case. Given the legitimacy of congressional oversight of the law enforcement agencies of government, and the need for access to information pursuant to such activities, a claim of prosecutorial discretion by itself is unlikely to defeat a congressional need for information.

The congressional action itself does not and cannot dictate prosecutorial policy or decisions in particular cases. Judicial rulings over the past two decades in other contexts have rejected various assertions of presidential privilege that might be raised in attempts to deny congressional access to agency information. Olson casts significant doubt on whether prosecutorial discretion is a core presidential power, a doubt that has been magnified by the appellate court rulings in Espy and Judicial Watch.

Those decisions indicate that core powers include only decisions that the president alone can make under the Constitution: appointment and removal, pardoning, receiving ambassadors and other public ministers, negotiating treaties, and exercising powers as commander in chief. As discussed in Chapter 5, Espy strongly hinted, and Judicial Watch made clear, that the protection of the presidential communications privilege extends only to the boundaries of the White House and the executive office complex and not to the departments and agencies.

Court of Appeals for the D. Circuit, not decisions by the Supreme Court. However, they provide helpful guidance, especially since the D.

Circuit is the court most likely to hear and rule on future claims of presidential privilege. The fact that presidential claims of privilege are often unsuccessful does not mean that DOJ policy arguments in particular situations should be immediately dismissed. A review of the historical record of congressional inquiries and experiences with committee investigations of DOJ reveals that committees normally have been restrained by prudential considerations.

Members of Congress typically weigh the considerations of legislative need, public policy, and the statutory oversight duties of congressional committees against the potential burdens and harms that may be imposed on the agency if deliberative process matter is publicly disclosed.

Under the appropriate circumstances, committees fully and properly have exercised their well-established congressional oversight authority. Two early instances in which committees used the contempt power to successfully overcome agency claims that general confidentiality provisions in their enabling legislation prohibited disclosures to Congress are important precedents. The first involved a investigation by the Subcommittee on Oversight and Investigations of the then-House Interstate and Foreign Commerce Committee, chaired by Rep.

John Moss, seeking to learn the degree to which Arab countries had asked U. It requested the Commerce Department to disclose to it all boycott requests filed by U. Secretary Rogers C. Morton refused on the ground that a broad confidentiality provision of the act, which did not expressly mention Congress, precluded such disclosure.

The subcommittee subpoenaed the documents but the secretary again refused to comply and was supported by an attorney general opinion that declared that the confidentiality provision did apply to Congress. The subcommittee voted the secretary in contempt after rejecting his proffer of information reflecting the number of such reports filed and other statistical information, but without revealing the names of the companies.

The subcommittee had noted that there were at least confidentiality provisions in various laws and that acceptance of their applicability to Congress would substantially undermine legislative oversight. The day prior to a scheduled vote by the full committee on contempt an agreement was reached under which the chairman of the subcommittee agreed to receive the documents in executive session and not make them public.

The second instance occurred during a investigation by the same House subcommittee which was dealing with allegations that a number of drug companies put their trade names on drugs actually manufactured by generic drug companies.

The subcommittee requested pertinent company documents held by the Food and Drug Administration FDA that the companies were required to file.

The secretary, supported by another attorney general opinion, refused to comply, again on the ground that a general confidentiality provision in its enabling legislation precluded disclosure to Congress. The subcommittee rejected the contention and voted to cite the secretary for contempt.

The matter was resolved by the release of the documents prior to full committee consideration. Agencies, and private party submitters of sensitive information to agencies, often claim that acquiescing in a committee demand will waive agency rights under exemption 5 of the Freedom of Information Act FOIA as well as other privileges that they might assert in any subsequent court litigation.

Exemption 5 of FOIA covers all the privileges against disclosure that would be provided under court rules governing civil litigation. While agencies have a legitimate interest in preserving these privileges, there should be no fear of waiver. In Rockwell International Corp. Department of Justice , the court acknowledged that the existence of statutory obligations to comply with congressional information requests is sufficient to demonstrate that compliance was not voluntary.

Under those circumstances, we find no Exemption 5 waiver. It is also well established that when the production of privileged communications is compelled, either by a court or a congressional committee, compliance with the order does not waive the applicable privilege in other litigation, as long as it is demonstrated that the compulsion was resisted.

Two court rulings involving the House Energy and Commerce Committee confirm that turning over documents to a committee does not necessarily waive claims of privilege.

However, the rulings also highlight the importance of sufficiently challenging a subpoena to demonstrate that the turnover was, indeed, involuntary. Both courts agreed that there would be no waiver if the document turnover had been involuntary. Instead a party must risk standing in contempt of Congress. The public release of proprietary, trade secret or other sensitive information, either through inclusion in a hearing record or via the Congressional Record, is protected by the Speech or Debate Clause.

Moreover, because such information does not normally include classified material, it is unlikely that release or publication would be deemed to violate the ethics rules of the House. The key consideration is such cases appears to be the act, not the actor. Agencies often contend that the Privacy Act prevents them from disclosing certain information to Congress in response to an official congressional inquiry.

However, a review of the relevant statutory provisions, judicial interpretations, and congressional practice indicates that there is no such barrier. The Privacy Act safeguards individuals against invasions of personal privacy by requiring government agencies to maintain accurate records and by providing individuals with more control over the gathering, dissemination, and accuracy of government information about themselves.

To secure this goal, the act prohibits an agency from disclosing information in its files to any person or to another agency without the prior written consent of the individual to whom the information pertains. Act exception, the Department was permitted to disclose to Congress details from nine U. There is some authority for the proposition that Rule 6 e , promulgated as an exercise of congressionally delegated authority and reflecting pre-existing practices, is not intended to address disclosures to Congress.

But not all matters presented to a grand jury are covered by the secrecy rule. The case law indicates that Rule 6 e would not prevent disclosure to Congress of the following types of documents:. Investigatory committees often reach a point where it becomes vital to interview or call as witnesses subordinate personnel who have unique, hands-on knowledge of events or operational details that are the subject of legislative scrutiny. Agency refusals of requests to provide particular employees typically rest on the grounds that:.

The Supreme Court held in United States v. Nixon , for example, that a claim of executive privilege will normally be defeated when the privileged information is needed to provide evidence in a criminal trial—although the strong presumption against revealing information that would jeopardize national security would control even in this instance.

The courts have been much less eager to breach the privilege with respect to congressional hearings. If such a claim of executive privilege arises during the Kagan confirmation process, the courts will probably not be useful in resolving a challenge to that claim. Nevertheless, some Clinton-era documents are likely to remain undisclosed, either because they contain sensitive national security information or because former President Clinton asserts executive privilege.

Maggie Jo Buchanan , Will Ragland. Anisha Singh , Kulsum Ebrahim. Peter Gordon Director, Government Affairs. Who can claim executive privilege? Remarkably, despite White House efforts to block her participation, former U.

Ambassador to Ukraine Marie Yovanovitch decided to appear before House investigators—and she may have inspired others to step forward, too. Fiona Hill, former White House adviser on Russia, appeared before House investigators on Monday, and Ambassador Sondland is expected to appear before House investigators on Thursday, despite earlier White House efforts to keep him quiet.

Although the White House continues to try to limit what current and former administration employees can say, lawyers representing those employees have pushed back , arguing that the executive privilege does not apply.

With a number of hearings and document production deadlines looming, there will be many opportunities for the White House to attempt to withhold cooperation. The U. Presidential claims of a right to protect the confidentiality of information from disclosure to Congress have been a common theme in executive-congressional relations dating back to the late s. Since then, presidents have withheld information from Congress when its disclosure would harm national security or impede sensitive negotiations as well as for the purpose of ensuring they receive effective counsel from their advisers.

As former President Dwight D. Eisenhower said in There is no business that could be run if there would be exposed every single thought that an adviser might have, because in the process of reaching an agreed position, there are many, many conflicting opinions to be brought together. And if any commander is going to get the free, unprejudiced opinions of his subordinates, he had better protect what they have to say to him on a confidential basis.