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Friday, June 29, 2012

Exactly What Sort of Executive Privilege -- Constitutional or Common-Law -- Is Attorney General Holder Asserting?

After reading and re-reading General Holder's June 19th letter, I cannot exactly tell. The answer to the question matters: Some varieties of privilege, I'd argue, should best be regarded as common-law privileges that Congress as a whole can waive with a statute, while others should be regarded as constitutional entitlements that protect the President absolutely, even against a properly enacted federal statute. General Holder seems to mix them up. This is not to say that General Holder does not have a good common-law privilege against a mere unicameral (or uni-committee) subpoena: I'd think that General Holder should win this fight against Darrell Issa on common law grounds. But it matters why he wins, and it is a little troubling that one cannot infer the precise reasons from his letter analyzing the privilege for the President.

In particular, I doubt that a mere Attorney General can claim any Article II privilege (as opposed to a common-law privilege) against an actual federal statute (not at issue here) demanding that the Attorney General or other executive official other than the President himself cough up documents pertaining to deliberations wholly within a cabinet department. Such a power, if recognized would carve a big hole in Congress' powers to enact comprehensive statutes creating frameworks for legislative oversight of the executive -- precisely the sort of statutes that have provided the sorts of controls praised by Jack Goldsmith in his recent book.

Representative Issa has demanded a lot of documents -- basically, anything pertaining to the executive branch's deliberations concerning the correction of inaccuracies in the Department of Justice's letter of February 4th, 2011. Some of these documents presumably pertain to deliberations wholly with the Department of Justice, some (perhaps) to deliberations between DOJ and the White House.

It would be worrisome for the President to claim some constitutional entitlement to bar Congress from demanding the former documents, not only because such a position seems wholly inconsistent with the relevant precedents (see, e.g., In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)) but also because it is hard to see, as a matter of text or common sense, why officials carrying out duties assigned by Congress can exercise statutorily conferred powers in ways barred by statutes. A privilege rooted in Article II would presumably give the Attorney General precisely such a power to resist not merely a subpoena of one House of Congress but also a statute enacted pursuant to Article I, section 7.

On the other hand, I have little doubt that General Holder has a common-law privilege to withhold documents pertaining to an ongoing internal investigation. This is a well-recognized common-law official privilege to protect "deliberative processes" within the executive branch. Such a privilege has been read into the FOIA as exemption 5, and it makes sense to read the same into 2 USC § 192 defining committee subpoena power, especially against what seems to me like Chairman Issa's blatant fishing expedition (carried out with a sweeping seine). If Congress wants to abrogate this common-law privilege by statute, then they can do: 2 U.S.C. section 192 certainly does not qualify.

General Holder's June 19th letter to the President, however, does not distinguish between common-law and constitutional privileges: It seems to assert both, without really distinguishing between them. "The documents at issue" and "documents of this kind" all are constitutionally privileged, according to Holder: To reenforce the point, Holder cites then-Acting AG Paul Clement's letter of July 27, 2007 letter regarding documents pertaining to internal White House deliberations about Bush's dismissal of nine U.S. Attorneys. But Clement's letter dealt only with internal White House deliberations, not every scrap of paper generated within DOJ: Is Holder really claiming that the Article II privilege covers the latter as well as the former?

The difficulty is that Holder does not describe the relevant documents with precision sufficient to know whether a plausible Article II argument could be made. Such a privilege might cover Holder's advice directly to the President or the President's immediate staff, but it surely does not cover Holder's discussion with his own staff. Holder notes that the "documents at issue were generated in the course of the deliberative process concerning the Department's responses to congressional and related media inquiries into Fast and Furious" (page 3). But such a description does not differentiate between "Article II-privileged" documents and "common law-privileged" documents: It surely includes both types of documents. Likewise, Holder argues that, because the Committee's inquiry pertains to "ongoing criminal investigations and prosecutions," they are protected by "executive privilege" )(page 4). True enough -- but which kind of privilege? The protection for deliberations pertaining to ongoing criminal investigations has always been understood as merely a common-law "deliberative process" privilege that Congress can waive.

I'd agree that such internal deliberations are protected by a privilege "quite similar to" attorney-client privilege (quoting again from Holder's letter) -- but, again, this privilege is surely merely a common-law protection that, if Congress so wishes, it can also waive: I doubt that governmental officials enjoy a due process right to keep their internal deliberations with "their" attorneys confidential, if they are being sued in their official capacity. If Congress were silly enough to demand that federal prosecutors or other subordinate executive officials plan their trial strategies according to the dictates of the Open Meetings Act, FACA, FOIA, or what have you, I assume that Congress could so. This would be so disastrous for executive effectiveness that no such waiver would ever make it past two houses of Congress -- but Congress has that power, right?

So I would have thought -- but Holder's letter muddies the issue. That the common-law protects Holder's deliberations from subpoenas like that issued by Darrell Issa or any other committee chair seems to me eminently reasonable. That the constitution itself does so seems to me a mite worrisome. And I cannot tell which claim General Holder is making. Yes, I understand the dynamic described by Terry Moe and William Howell under which Presidents over-reach in their assertions of legal entitlements. But, given the ruckus about President Obama's continuing his predecessor's aggressive assertions of executive power, it would have been nice for Holder to be a bit clearer about the scope of his claims.

Posted by Rick Hills on June 29, 2012 at 11:00 AM | Permalink


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Aziz raises some excellent points. As I suggested in my earlier comment, I agree with him that the distinctions between "constitutional" and "common law" forms of executive privilege might not be as clear-cut as the Espy court suggested -- and, in particular, that "deliberative process" claims not involving presidential or WH communications might well implicate constitutional prerogatives in some cases, but not in others, depending on the impact on various executive functions.

Especially important in this regard, it seems to me, is that the current dispute apparently is focused (if the Holder letter is accurate) on Issa's attempts to obtain DOJ communications *about how to engage with Congress,* including how to respond to Issa's previous requests. As I understand it, the documents in question were not created while DOJ administered Fast & Furious; they all postdate the cessation of that program, and primarily involve how DOJ deliberated how to respond to congressional inquiries. That's not to say that Congress has no interest whatsoever in how an executive agency responds to congressional requests; of course it can have some such interest. But surely there is also *some* constitutional protection for an executive branch's confidential deliberations about how to interact with Congress -- even when that agency is a creation of statute, and even when the substantive subject matter is the exercise of statutory authorities. I don't mean to suggest that the Executive should always prevail; only that it can't possibly be the case that Congress (let alone a single committee) has an unqualified, unobstructed window into *all* of the agency's deliberations about how to interact with the legislature itself. As the most pertinent passage in the Holder letter explains:

Congressional oversight of the process by which the Executive Branch responds to congressional oversight inquiries would create a detrimental dynamic that is quite similar to what would occur in litigation if lawyers had to disclose to adversaries their deliberations about the case, and specifically about how to respond to their adversaries' discovery requests. As the Supreme Court recognized in establishing the attorney work product doctrine, "it is essential
that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). Were attorney work product "open to opposing counsel on mere demand," the Court explained, "[i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial ... , [a]nd the interests of the clients and the cause of justice would be poorly served." !d. at 511.

Similarly, in the oversight context, as the Department recognized in the prior administration, a congressional power to request information from the Executive Branch and then review the ensuing Executive Branch discussions regarding how to respond to that request would chill the candor of those Executive Branch discussions and "introduce a significantly unfair imbalance to the oversight process." Letter for John Conyers, Jr., Chairman, Committee on the Judiciary, U.S. House of Representatives, and Linda T. Sanchez, Chairwoman, Subcommittee on Commercial and Administrative Law, Committee on the Judiciary, U.S. House of Representatives, from Richard A. Bertling, Acting Assistant Attorney General, Office of Legislative Affairs at 3 (Mar. 26, 2007). Such congressional power would disserve both Branches and the oversight process itself, which involves two co-equal branches of government and, like litigation, often is, and needs to be, adversarial. We recognize that it is essential to Congress's ability to interact independently and effectively with the Executive Branch that the confidentiality of internal deliberations among Members of Congress and their staffs be protected against incursions by the Executive Branch. See Gravel v. United States, 408 U.S. 606, 616 (1972) ("The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch."). It is likewise essential to the Executive Branch's ability to respond independently and effectively to matters under congressional review that the confidentiality of internal Executive Branch deliberations be protected against incursions by Congress.

Posted by: Marty Lederman | Jun 30, 2012 8:19:41 PM

The following is an e-mail from Aziz Huq, which he gave me permission to post here:

1. As a threshold matter, I think it’s correct that presidential claims to have authority to withhold documents do not clearly draw a line between constitutional and common law grounds for the privilege. Although I don’t have the specific form of each and every presidential claim to privilege at my fingertips, one potentially useful example—useful for your analytic purposes, that is—comes to mind. There is an opinion by Attorney General Robert Jackson that asserts privilege over investigative files—i.e., a fact pattern somewhat close to today’s controversy. Jackson doesn’t cleanly separate constitutional from common law claims, and instead relies vaguely on the Take Care Clause. (The opinion is at 40 US Op Att’y Gen 45). This is arguably an example of an Attorney General (not the president) asserting what today would be called executive privilege over in effect deliberative documents, but on constitutional grounds. (To be sure, one might distinguish the Jackson memo either by characterizing his claim as founded on the common law or by noting that it was linked to espionage cases, and hence triggered Article II protection that way). I suspect that if one examined the way that the Jackson opinion has been invoked in later OLC and AG opinions, one would find further instances of constitutional claims being made in respect to documents produced outside the White House that merit what you call ‘deliberative privilege.’

2. I wonder, however, about some of the premises of your post. You say, for example, that “I doubt that a mere Attorney General can claim any Article II privilege (as opposed to a common-law privilege) against an actual federal statute (not at issue here) demanding that the Attorney General or other executive official other than the President himself cough up documents pertaining to deliberations wholly within a cabinet department.” But why should this be so? Might it not be possible that the President can exert an Article II authority over some component of the exercise of a statutory power? In addition to regulating primary conduct, Congress of course employs its ‘horizontal’ necessary and proper law to create executive branch institutions needful to the accomplishment of Article II powers, including the exercise of military force and the use of prosecutorial discretion. No Justice Department, no prosecutions. No military, no commander in chief. Yet, once Congress creates a military or a prosecutorial cadre, there may be ways in which it cannot limit or reserve certain powers, depending on how one reads Article II. If the president has a plausible claim of discretion with respect to the deployment of statutory instruments such as the army or the prosecution power, it seems not much of a stretch to say he has the power to withhold some documents. This line of argument – which in effect suggests the ‘greater doesn’t necessarily include the lesser’ when it comes to congressional power – is supported by limits on Congress’s power to constraint removal (see Free Enterprise Fund). To be clear, I don’t mean to endorse this line of argument—only to note that your starting point is not free of controversy.

3. In addition, I wonder whether the distinction between constitutional and common law powers is, I think, not always clear in practice. State sovereign immunity is one obvious area in which they arguably blend. In respect to Article II, one might argue (on originalist grounds, if that’s one’s kettle of fish) that common law recognition of certain inherent executive powers provide glosses on Article II’s vesting clause. Also, what does it mean to say that deliberative privilege is a “common law” privilege? That it was in fact recognized in the pre-1787 common law (which, note, doesn’t mean that it isn’t also a referent for the purposes of glossing the vesting clause)? That is emerges through what Trevor Morrison an Curt Bradley in their forthcoming piece call ‘historical practice’? Or is it a kind of constitutional common law, which might be amenable to congressional override (see Henry Monaghan’s well-known piece) or not (see the Chief’s opinion in Dickerson)? I’m not sure I know the answer. All of which is to say I don’t see the common law/constitutional dichotomy as being self-evident; perhaps the line is an artificial and inexact one, or perhaps its underinclusive. Were you exploring it further, I’d urge you to think more about how one draws that line(s).

4. Finally, the Holder letter also seems to me unclear: One might read it to say that the fact that the documents sought were generated in the course of an interbranch controversy gives them constitutional salience that ordinary deliberative product would not have. Hence, I don’t know if one can generalize his claims to all instances of the deliberative privilege.

Posted by: Rick Hills | Jun 30, 2012 11:46:34 AM

Thanks, Marty: Very comprehensive. You rightly ask, "deliberative process [is] more than sufficient to respond to an Issa subpoena . . . so why go further to opine on other questions not presented here?"

My answer is, "Just for P.R. purposes, nothing more." I appreciate lawyerly circumspection as much as the next guy, but the President campaigned on a platform of increased executive transparency: Why be so cagey in defending a sort of privilege that is bound to raise hackles? Why not, at least, make arguments in the alternative, asserting, first, that the AG can assert DP, and, because Issa lacks any firm statutory basis for resisting such a common-law DP, that suffices to defeat his claim under House rules and 2 U.S.C. section 192. Then reserve the question of whether Article II would allow the President/AG to cloak DP privilege with the force of law even as against Congress in all of its statutory majesty.

Such a position would have the P.R. benefit of noting that Issa speaks for Congress only to the extent that the relevant House rules and 2 U.S.C. section 192 allow him to do so -- and they do not obviously purport to let him pry into an open case file at DOJ. this sort of statement would underscore that the President/Holder is not resisting CONGRESS as such but only a particular member of Congress who might lack statutory or rule-based license to go on this particular fishing expedition.

Posted by: Rick Hills | Jun 29, 2012 5:01:27 PM

Rick: Seems to me the AG is asserting deliberative process, not presidential deliberation, privilege, at least as to the mine run of the documents, perhaps all of them. As you note, that's more than sufficient to respond to an Issa subpoena . . . so why go further to opine on other questions not presented here?

I may be mistaken, but I think DOJ/OLC has rarely if ever (at least post-Espy) clearly acknowledged -- nor denied -- that the deliberative process privilege is merely common-law-based, rather than at least quasi-constitutional (or perhaps it's constitutional common law! -- cf. David Strauss). But see http://www.justice.gov/olc/touhy7final.htm (referring to it as a common-law privilege).

The CTADC in Espy called it "*primarily* a common-law privilege, for whatever that's worth. Seems to me that in some cases it would implicate constitutional prerogatives, but not in others. Very fact-dependent.

You say the "answer to the question matters." But why does it here? There's no statute here requiring disclosure, so no occasion to opine on that issue.

Of course, as the court explained in Espy, whatever its origins, the d.p. privilege is less robust in certain ways than the p.d. privilege, including in that perhaps it's subject to different standards for balancing congressional interests (see passages quoted below). I acknowledge that the Holder letter suggests in places that they're asserting a constitutional privilege (see the first paragraph of Part II, and the repeated references to presidential deliberations cases such as Senate Select Committee and the Clinton FALN clemency decision), thereby perhaps muddying the analysis, since it appears that they're conflating the p.d. and d.p. privileges (or suggesting that the analysis is the same as between the two). But it's not obvious to me (from the face of the letter) that the assertion of privilege here isn't legitimate, and wouldn't overcome Issa's asserted interests, even under the Espy standards.

Espy Case, 121 F3d at 745-46:

While the presidential communications privilege and the deliberative process privilege are closely affiliated, the two privileges are distinct and have different scopes. Both are executive privileges designed to protect executive branch decisionmaking, but one applies to decisionmaking of executive officials generally, the other specifically to decisionmaking of the President. The presidential privilege is rooted in constitutional separation of powers principles and the President's unique constitutional role; the deliberative process privilege is primarily a common law privilege. See Fitzgerald, 457 U.S. at 753 & n. 35, 102 S.Ct. at 2703 & n. 35. Consequently, congressional or judicial negation of the presidential communications privilege is subject to greater scrutiny than denial of the deliberative privilege. See26A Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5673, at 37; contra Freund, supra, at 20 (commenting that question of whether presidential privilege is rooted in the common law or the Constitution is not “very meaningful,” but not discussing effect different derivation has on congressional power).

In addition, unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones. Even though the presidential privilege is based on the need to preserve the President's access to candid advice, none of the cases suggest that it encompasses only the deliberative or advice portions of documents. Indeed, Nixon argued that the presidential privilege must be qualified to ensure full access to facts in judicial proceedings, thereby assuming that factual material comes under the privilege. 418 U.S. at 709, 94 S.Ct. at 3108; but see Larkin, supra, § 6.01 at 6-1 (asserting, without explanation, that the presidential privilege does not “protect purely factual material”). There is no indication either that the presidential privilege is restricted to pre-decisional materials. GSA cautioned that the privilege only applies to communications made in the process of arriving at presidential decisions, but by this we believe the Court meant that the privilege was limited to materials connected to presidential decisionmaking, as opposed to other executive branch decisionmaking, and not that only pre-decisional materials were covered. 433 U.S. at 449, 97 S.Ct. at 2793. Nor would exclusion of final or post-decisional materials make sense, given the Nixon cases' concern that the President be given sufficient room to operate effectively. These materials often will be revelatory of the President's deliberations-as, for example, when the President decides to pursue a particular course of action, but asks his advisers to submit follow-up reports so that he can monitor whether this course of action is likely to *746 **293 be successful. The release of final and post-decisional materials would also limit the President's ability to communicate his decisions privately, thereby interfering with his ability to exercise control over the executive branch.

Finally, while both the deliberative process privilege and the presidential privilege are qualified privileges, the Nixon cases suggest that the presidential communications privilege is more difficult to surmount. In regard to both, courts must balance the public interests at stake in determining whether the privilege should yield in a particular case, and must specifically consider the need of the party seeking privileged evidence. But this balancing is more ad hoc in the context of the deliberative process privilege, and includes consideration of additional factors such as whether the government is a party to the litigation. Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred. On the other hand, a party seeking to overcome the presidential privilege seemingly must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials. In holding that the Watergate Special Prosecutor had provided a sufficient showing of evidentiary need to obtain tapes of President Nixon's conversations, the Supreme Court made no mention of the fact that the tapes were sought for use in a trial of former presidential assistants charged with engaging in a criminal conspiracy while in office. Accord Senate Committee, 498 F.2d at 731 (noting that presidential privilege is not intended to shield governmental misconduct but arguing that showing of need turns on extent to which subpoenaed evidence is necessary for government institution to fulfill its responsibilities, not on type of conduct evidence may reveal); contra 26A Wright & Graham, supra, § 5673, at 53-54 (quoting Senate Committee's not-a-shield language and arguing that allegations of misconduct qualify the privilege, but not addressing Senate Committee's comment that need showing turns on function for which evidence is sought and not on conduct revealed by evidence).

These differences between the presidential communications privilege and the deliberative privilege demonstrate that the presidential privilege affords greater protection against disclosure.

See also Loving, 550 F3d at 38: "[U]nlike the presidential communications privilege, the deliberative process privilege does not protect documents in their entirety; if the government can segregate and disclose non-privileged factual information within a document, it must."

Posted by: Marty Lederman | Jun 29, 2012 4:42:08 PM

Yours is a really important observation -- that is, that the type of privilege claimed by AG Holder is unclear. I wonder if the DOJ has intentionally left things fuzzy in part to give it time to test out public and congressional reactions. If there's a big outcry over presidential imperialism that looks to be a political problem, then the DOJ can say that it's just talking about a common law privilege that Congress is free to override through legislation. (My guess is that any such statement would contain important caveats, but it could be made with the knowledge that Congress is extremely unlikely to pass such a statute, and certainly to override a presidential veto, any time in the near future!)

Posted by: Heidi Kitrosser | Jun 29, 2012 1:50:09 PM

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