Order Code RL30319
CRS Report for Congress
Received through the CRS Web
Presidential Claims of Executive Privilege:
History, Law, Practice and Recent Developments
September 21, 1999
Morton Rosenberg
Specialist in American Public Law
American Law Division
Congressional Research Service ˜ The Library of Congress

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ABSTRACT
This report provides a brief review and discussion of the historical and legal development of
the constitutionally-based prerogative of the President to maintain the confidentiality of
documents or other materials or information that reflect presidential decisionmaking and
deliberations. The evolving nature and scope of the presidential privilege is described and
discussed and recent court decisions are analyzed to determine how they illuminate current
interbranch information disputes.

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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, 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. 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 seven
court decisions involving interbranch information access disputes, three have involved
Congress and the Executive but only one of these resulted in a decision on the merits.
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 issues.
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 recent ruling in In re Sealed
Case, 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 In re Sealed Case authoritatively
addressed each of these issues in a manner that may have drastically altered the future
legal playing field in resolving such disputes.

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Contents
Presidential Claims of Executive Privilege: History, Law, Practice and Recent
Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Watergate Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Post-Watergate Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Executive Branch Positions On The Scope of Executive Privilege . . . . . . . . . . . 9
Implications and Potential Impact of In Re Sealed Case For Future Executive
Privilege Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
FALN Clemency Controversy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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Presidential Claims of Executive Privilege:
History, Law, Practice and Recent Developments
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 our constitutional scheme of separated powers. Of the seven
court decisions involving interbranch information access disputes,3 three have
involved Congress and the Executive4 but only one of these resulted in a decision 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 issues.6
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,
1 See Archibald Cox, Executive Privilege, 122 U. of Pa. L. Rev. 1383, 1395-1405 (1979).
See generally, Mark J. Rozell, Executive Privilege: The Dilemma of Secrecy and Democratic
Accountability (1994)(Rozell); Mark J. Rozell, 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).
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, 121 F.3d 729 (D.C. Cir. 1997); In re Grand Jury Proceedings, 5 F. Supp. 2d 21
(D.D.C. 1998).
4 Senate Select Committee, supra; United States v. House of Representatives, supra;
and United States v. AT&T, supra.
5 Senate Select Committee, supra.
6 Nixon v. Administrator of General Services, 433 U.S. 425 (1977).

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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 recent ruling in In re Sealed
Case,7 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 In re Sealed Case authoritatively
addressed each of these issues in a manner that may have drastically altered the future
legal playing field in resolving such disputes. A current dispute with Congress
involving a presidential exercise of the pardon power has drawn a formal claim of
privilege by President Clinton and may serve to amplify the law in this area. It is
useful, however, before proceeding with a description and explication of In re Sealed
Case, 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 of In re Sealed Case, we 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,8 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"9
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
7 121 F.3d 729 (D.C. Cir. 1997).
8 487 F.2d 750 (D.C. Cir. 1973).
9 487 F.2d at 717.

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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.10
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.11 The appeals court initially determined that "[t]he
staged decisional structure established in Nixon v. Sirica" was applicable "with at least
equal force here."12 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."13 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
congressional perspective, merely cumulative."14 Nor did the court feel that the
Committee had shown that the subpoenaed materials were "critical to the performance
of [its] legislative functions." 15 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."16 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."17
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 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
10 Id.
11 498 F.2d 725 (D.C. Cir. 1974).
12 498 F.2d at 730-31.
13 Id. at 731.
14 Id. at 732 (emphasis supplied).
15 Id. (emphasis supplied).
16 Id. at 733.
17 Id.

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legislative proposals.18 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."19 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 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."20 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."21
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
18 The proposition has been a persistent characteristic of the statements of the Reagan,
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).
19 498 F. 2d at 731.
20 Id. at 732-33.
21 Id. at 733.

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they possess inquisitorial power. They must meet frequently to inspect the Conduct
of the public offices." 22 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-governing people is that people which
discusses and interrogates its administration.23
The Supreme Court has cited Wilson favorably on this point.24 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
Government to expose corruption, inefficiency or waste."25 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.
Two months after the ruling in Senate Select Committee, the Supreme Court
issued its unanimous ruling in United States v. Nixon,26 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.27 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.28 Also, while acknowledging the
need for confidentiality of high level communications in the exercise of Article II
22 2 The Records of the Constitutional Convention of 1787, at 206 (Max Farrand, ed., 1966).
23 Woodrow Wilson, Congressional Government 195, 198 (Meridian Books 1956)(1885).
24 See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 132 (1979).
25 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).
26 418 U.S. 683 (1974)(Nixon I).
27 418 U.S. 705, 706. See also, id. at 708, 711.
28 Id. at 705, 706, 708.

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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."29 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.30
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,"31 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 . . .".32 The Court was careful,
however, to limit the scope of its decision, noting that "we are not here concerned
with the balance between the President's generalized interest in confidentiality . . . and
congressional demands for information." 33
In the last of the Nixon cases, Nixon v. Administrator of General Services34, 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." 35 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.36 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.''37 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
29 Id. at 706.
30 Id.
31 Id. at 707.
32 Id. at 713.
33 Id. at 712 n. 19.
34 433 U.S. 425 (1977)(Nixon II).
35 Id. at 439.
36 Id. at 446.
37 Id. at 449 (citations omitted).

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President Nixon's resignation "in order to gauge the necessity for remedial
legislation."38
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 but also the willingness to
intervene where the political process appears to be failing.

In United States v. AT&T,39 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.40 In
that case, the Justice Department had sought to enjoin AT&T's compliance with a
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."41 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."42 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
38 Id. at 453.
39 567 F.2d 121 (D.C. Cir. 1977).
40 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).
41 Id. at 127 n.17.
42 Id. at 128.

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Senate, consent to treaties and the appointment of
ambassadors.43
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."44
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.45 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 optimal accommodation through a
realistic evaluation of the needs of the conflicting
branches in the particular fact situation.46
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]."47 The court suggested, however, that it would
resolve the dispute if the political branches failed to reach an accommodation.48 The
court-encouraged negotiations ultimately led to a compromise. Subcommittee staff
was allowed to review some unedited memoranda describing the warrantless wiretaps
43 Id. at 128.
44 Id. at 129.
45 Id. at 127-28.
46 Id. at 127 (footnote omitted).
47 Id. at 130.
48 Id. at 123, 126.

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and report orally to subcommittee members. The Justice Department retained
custody of the documents.49
The federal district court in the District of Columbia displayed the same
reluctance to intervene in an executive privilege dispute with Congress in United
States v. House of Representatives.50 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 the President.51 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."52 "Compromise and cooperation,
rather than confrontation, should be the aim of the parties." 53 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.54 Ultimately the branches did
reach an agreement and the court did not need to balance executive and congressional
interests.55
Executive Branch Positions On The Scope of Executive Privilege
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 deliberative
49 Id. at 131-32.
50 556 F.Supp. 150 (D.D.C. 1983).
51 Id. at 151.
52 Id. at 152.
53 Id. at 153.
54 Id. at 152.
55 See Devins, supra, at 118-120.

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material.56 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.57 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".58 According to this view, the need for the executive to prevent
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."59
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."60 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
56 See Smith letter, supra note 18, 5 Op. OLC at 28-31; Barr Memo, supra n.18, 13 Op.
OLC at 187-190; Reno/FALN letter, supra n. 18.
57 See, e.g., 418 U.S. at 705. See also, Smith Letter, supra, note 18, 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., Oct. 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).
58 Smith Letter/Watt, supra n. 18 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.185 at 192 ("Congress will seldom have any legitimate legislative interest in knowing the
precise predecisional positions and statements of particular Executive Branch officials".).
59 Smith Letter/Watt, supra n. 18 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 Senate Committee on the Judiciary, 92d Cong. 1st 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".).
60 Smith Letter/Watt, supra n. 18, 5 Op. OLC at 29.

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Eisenhower Administration took the most expansive approach, arguing that the
privilege applied broadly to advice on official matters among employees of the
executive branch.61 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.62 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.63
The 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.64 Finally, the Clinton
administration has taken the similarly expansive position that all communications
within the White House65 or between the White House and any federal department or
agency66 are presumptively privileged.
61 See Rozell, supra, at 44-46.
62 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.
63 See Memorandum for the Attorney General Re: Confidentiality of the Attorney
General's Communications in Counseling the President, 6 0p. OLC 481, 489 (1982)(Olson
Memo).
64 Bush Memo, supra n. 57 at 1. Letter from General Counsel, DOD, Terrence
O'Donnell to Hon. John Conyers, Jr., Oct. 8, 1991, at 5 (O'Donnell Letter).
65 See, e.g., Cutler Memo, supra n. 57 at 2.
66 See, e.g., Cutler Memo, supra n. 57 at 2 (Communications between White House and
departments or agencies, including advice to or from to White House); Reno/FALN letter,
(continued...)

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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 has 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 and
hearings."67 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."68 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.69
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.70 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."71
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."72 Executive
66(...continued)
supra n. 18.
67 Cutler Memo, supra n. 8 at 1.
68 Congressional Subpoenas of Department of Justice Investigative Files, 8 Op. OLC
315 (1984). Accord Smith Letter/EPA, supra n. 18 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".).
69 See David Hoffman, "President Offers to Share Iran Sales Notes with Hill; Aides
Reversed on Memoir Materials", Washington Post, February 3, 1987, at A1.
70 Olson Memo, supra n. 62 at 486.
71 Id.; see also Smith Letter/EPA, supra n. 18 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".).
72 Cutler Memo, supra n. 57 at 1. Accord Memorandum from President Reagan for the
(continued...)

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CRS-13
privilege will be invoked only after "careful review,"73 in the "most compelling
circumstances,"74 and only after the executive has done "the utmost to reach an
accommodation" with Congress.75 The Bush Administration limited the formal claims
of executive privilege to those instances where the effort to accommodate had failed
and Congress had issued a subpoena.76 The duty to seek an accommodation is the
result of the uncertain boundaries between executive and legislative interests.77 This
uncertainty imposes upon each of the branches an "obligation. . . to accommodate the
legitimate needs of the other",78 and a duty to conduct "good faith" negotiations.79
Avoiding the disclosure of embarrassing information is not a sufficient reason to
withhold information from Congress.80 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."81
Where negotiations have faltered and the President has made a formal claim of
executive privilege, the executive will likely argue (as the Clinton Administration has
in its latest invocations of executive privilege82) 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."83 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 statements, 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
72(...continued)
Heads of Executive Departments, and Agencies Re: Procedures for Governing Responses to
Congressional Requests for Information, November 4, 1982 (Reagan Memo).
73 Cutler Memo, supra n. 57 at 1.
74 Reagan Memo, supra n. 71, at 1.
75 Barr Memo, supra n. 18, at 185.
76 Id. at 185, 186.
77 Rehnquist Statement, supra n. 61, at 420.
78 Smith Letter/Watt, supra n. 18, at 31.
79 Reagan Memo, supra n. 71, at 1.
80 Rehnquist Statement, supra n. 61, at 422.
81 Id.
82 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).
83 498 F.2d at 731.

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CRS-14
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 has sought to make this doctrinal expansion effective by centralizing
scrutiny and control of all 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.84
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.85
In addition, recent administrations have aggressively challenged congressional
efforts to engage in oversight, often based on the Senate Select Committee decision,
but also on a broad view of the insulation presumed to be provided by prosecutorial
discretion when congressional investigations of agency law enforcement activities is
involved.
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 has been a more rapid escalation of individual
interbranch information disputes clashes, a widening and hardening of the differences
84 Cutler Memo, supra n. 18 at 2-3.
85 Reagan Memo, supra n. 71 at 2.

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CRS-15
in the legal positions of the branches on privilege issues, and an increased difficulty
in resolving disputes informally and quickly. President Clinton has formally asserted
executive privilege four times and has resolved a number of disputes under the
pressure of imminent committee actions on contempt citations and subpoena
issuances.86 In addition, the Clinton Administration has litigated, and lost, significant
privilege cases in the last two years.87 One, In re Sealed Case, to which we 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 In Re Sealed Case For Future
Executive Privilege Disputes
In In re Sealed Case,88 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 Independence 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 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
86 See Appendix A for a compilation of executive privilege claims from the Kennedy
through the Clinton Administrations.
87 Clinton v. Jones, 117 S Ct. 1636 (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 117 S.Ct. 2487 (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 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.
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).
88 121 F.3d 729 (D.C. Cir. 1997).

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CRS-16
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 applies to executive
branch officials generally, is a common law privilege which requires a lower threshold
of need to be overcome, and "disappears altogether when there is any reason to
believe government misconduct has occurred."89
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."90
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."91 The presidential privilege applies to all documents
in their entirety92 and covers final and post-decisional materials as well as pre-
deliberative ones.93

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."94 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
89 121 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"').
90 Id. at 745, 752. See also id. at 753 ("...these communications nonetheless are
ultimately connected with presidential decisionmaking".).
91 Id. at 754. See also id. at 757.
92 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.
93 Id. at 745.
94 Id. at 752.

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CRS-17
communications authored or received in response to a solicitation by members of a
presidential adviser's staff."95
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 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
95 Id.

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CRS-18
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 of advising the
President.96
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-delegable
Presidential power."97 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, pursuant
to a presidential delegation of authority or statutory framework."98 The reference the
court uses to illustrate the latter category is the President's Article II 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.99
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
96 Id. (footnote omitted).
97 Id. at 752.
98 Id. at 752-53.
99 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).

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CRS-19
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 In re Sealed Case 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 the
President's alone."100 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."101 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 direct
decisionmaking by the President."102
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 In re Sealed Case was decided, the House Resources
Committee was in the midst of an inquiry of President Clinton's utilization of the
Antiquities Act of 1906,103 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 lead 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
100 121 F.3d at 748.
101 Id. at 750.
102 Id. at 752.
103 16 U.S.C. 431 (1994).

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CRS-20
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 In re Sealed
Case. 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 decision process, including
deliberations among and advice of White House advisers, was covered. The
Committee in reply letters disagreed, arguing that In re Sealed Case 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.104
The narrower reading of Espy 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. Of course further judicial development of the principles enunciated in
Espy may alter this view of its scope.
FALN Clemency Controversy
A currently evolving interbranch dispute may provide the vehicle for illuminating
the correct understanding of Espy. On August 11, 1999, President Clinton signed a
conditional clemency offer for 16 persons convicted between 1981 and 1989 of
felonies reportedly to further the cause of Puerto Rican independence. The 16
individuals were believed to have been associated with or leaders of two organizations
that used criminal violence to bring notice to the cause of independence: the Fuerzas
Armadas de Liberacíon Nacional (FALN) and Los Macheros. The connection
104 See 143 Cong. Rec. E2259-2272 (daily ed. Nov. 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.

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CRS-21
between these individuals and certain crimes of violence is a matter of dispute, but
their convictions were not for such violent crimes. On September 7, 1999, 12 of the
offerees accepted conditional clemencies, and on September 9 two others also
accepted. Two individuals rejected clemency.105
The clemency offer has become quite controversial in Congress. On September
9, 1999, the House adopted H.Con.Res 180, a resolution in opposition to the
clemency offer, and several committees have begun oversight investigations. One, the
House Committee on Government Reform, on September 1, 1999, issued subpoenas
seeking documents from the Bureau of Prisons, the office of the Pardon Attorney in
the Justice Department, and the White House Counsel's Office, and also sought
testimony from certain named officials in these entities seeking information with
respect to aspects of the decisional process that led to the clemency offer. On
September 16, 1999, Attorney General Reno advised the President that a "compelling
argument can be made . . . that Congress has no authority whatsoever to review a
President's clemency decision."106 The Attorney General reasoned that the pardon
power, which is vested in the President by Article II, sec. 2, cl. 1 of the Constitution,
"is unquestionably an exclusive province of the Executive Branch,"107 citing the
Supreme Court's 1871 ruling in United States v. Klein.108 Thus, she concluded,
"Congress' oversight authority does not extend to the process employed in connection
with a particular clemency decision, to the materials generated or the discussions that
took place as part of that process, or to the advice or views the President received in
connection with a clemency decision."109 The Attorney General alternatively urged
that even if the Committee can demonstrate a legitimate oversight role, it can satisfy
its informational needs from non-privileged documents.110
With respect to the compelled testimony of Administration officials, the Attorney
General recurred to "the longstanding position of the executive branch that 'the
President and his immediate advisors are absolutely immune from testimonial
compulsion by a Congressional committee,'" citing past statements to that effect by
various Justice Department officials,111 advising the President to instruct subpoenaed
White House Counsel not to appear. On the same date, the Deputy White House
Counsel advised the Chairman of the House Government Reform Committee that "the
President's authority to grant clemency is not subject to legislative oversight," and
that, with the advice of the Attorney General, the President had directed her to claim
executive privilege.
105 See, Keith Bea, Clemency for Certain Advocates of Puerto Rican Independence:
Summary of Developments and Perspectives, CRS Report RS20331.
106 Reno/FALN Letter, supra n. 18 at 2.
107 Id. (emphasis supplied).
108 80 U.S. (13 Wall.) 128, 147 (1871).
109 Id. quoting Senate Select Committee.
110 Id at 2-3.
111 Id. at 4-5 (emphasis supplied).

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CRS-22
The privilege claim raises a number of issues. The very breadth of privilege
claimed in this instance is questionable if it is understood to absolutely preclude
Congress' legitimate oversight role. However, if what the Attorney General and the
White House are saying is that Congress may not directly interfere with the exercise
of the pardon, then the statements are unexceptionable. Indeed, that is precisely what
the Supreme Court's ruling in Klein stands for. There the Court found that Congress
had impermissibly attempted to change the effect of a presidential pardon by
statutorily directing the courts in specified instances to treat the pardons as evidence
of guilt and to declare them null and void.112 That is not the situation here. Congress
is not seeking to legislatively overturn the clemency grants or otherwise change or
interfere with them.
The question, then, is the legitimacy of Congress's oversight interest. It could
be argued that the constitutional vesting of pardon authority exclusively in the
President, one not to be shared with any other branch, makes it a uniquely "core"
presidential power, insulating it from all congressional scrutiny. However, positing
an extreme case, not apparently in issue in the present circumstances, could it be
seriously contended that credible evidence of granting pardons for material gain might
not plausibly be argued to be an impeachable offense? Or if the record on which the
presidential clemency decision was made might contain evidence that the release of
one or more of the individuals would pose a clear and present threat to national
security or public safety and was ignored, could it not similarly qualify for
congressional inquiry? Apart from the remote possibility of impeachment, could not
the investigation of the decisional process also reveal instances of poor administration,
arbitrary and capricious behavior, abuse, waste, fraud, corruption or unethical conduct
which Congress can potentially address legislatively or by fulfilling its public
informing function?
But demonstrating that the exercise of the pardon power is not absolutely
insulated from congressional review does not vitiate the qualified nature of the
presidential privilege. A committee must demonstrate its need and the unavailability
of sought-after documents and information elsewhere. The necessary degree of a
showing of need may vary depending on where the documents sought were generated.
If Espy is to be read generously, pre-existing documents and information about the
individuals generated during their imprisonment are most likely not to be covered by
a claim of executive privilege, even if they were part of the record on which White
House advisors made their recommendations. The work product of the office of the
Pardon Attorney (which is to be presented to the Attorney General for her
recommendation to the President or to the White House Counsel) is more
problematic, but Espy appears to make a distinction between officers and support
personnel within the White House and remote officers and employees in executive
agencies who prepare documents that may go into "direct presidential
decisionmaking.” Operational proximity to the President is stated by the appeals court
to be the checkpoint for coverage by the privilege.
112 80 U.S. at 148 ("[The Court] is required [by Congress] to disregard pardons granted
by proclamation on condition, through the condition has been fulfilled, and to deny them legal
effect.").

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The advice the Attorney General or the White House Counsel renders directly
to the President would clearly be covered by the privilege under Espy. The question
for a court would then be whether a sufficient level of need has been demonstrated by
the Committee to overcome the privilege. It would be difficult to speculate on any
eventual outcome at this juncture in the proceedings.
But the possibility that a reviewing court, or the Supreme Court, would find the
exercise of the pardon power special or distinct from other so-called core
constitutional authorities is not out of the question. Thus the pardon power may be
distinguished from other core presidential functions-appointments, national security,
foreign affairs- by the fact that it is not a shared power as are all the others. The
consequence in that event might be a ruling that only a high degree of credible
evidence will satisfy the need requirement, and the privilege might be extended to
cover deliberations in the Justice Department as well because they are deemed integral
to the pardon decisional process.
Finally, with respect to the "longstanding" White House policy of not allowing
White House officials to testify with respect to potentially privileged communications,
it may be noted that such a policy has been honored in the breach.113 Those
"deviations" may be explained by White House considerations of the political
consequences of a failure to produce the aides.114 If past experience is a teacher,
political accommodation is the most likely outcome.115
113 See Louis Fisher, White House Aides Testifying Before Congress, 27 Presidential
Studies Quarterly 139 (1997) (Fisher) (Cataloging over 100 instances between 1972 and 1997
in which White House aides were allowed to testify before congressional committees).
114 See, Fisher, supra n. 113, at 139.
115 See, Devins, supra n. 2.

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Appendix A
Presidential Claims of Executive Privilege From The Kennedy
Through The Clinton Administrations.
Following is a brief, summary recounting of assertions of presidential claims of
executive privilege from the Kennedy through the Clinton Administrations.
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, “Executive Privilege: The Dilemma of Secrecy and
Democratic Accountability” (1994), at 46-47 (Rozell).
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, n.1 at 47-48, 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
finally with respect to a jury trial subpoena for 64 additional tapes issued by Special
Prosecutor Leon Jaworski. Rozell, supra, at 66-72.

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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 89-96;
101-106.
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 115-123.
6. Bush
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 134-135.
7. Clinton
President Clinton has 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. 4 of the assertions occurred
during grand jury proceedings. We list the individual assertions and briefly identify
them in view of the time structures of this request.
i.
Kennedy Notes (1995)(executive privilege initially raised but never
formally asserted)(Senate Whitewater investigation). Sen. Rept. No.
104-191, 104th Cong., 1st Sess. (1995).
ii.
White House Counsel Jack Quinn/Travelgate investigations
(1996)(House Government Reform). H. Rept No. 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)
v.
In re Grand Jury Subpoena Duces Tecum, 112 F. 3d 910 (8th Cir.
1997)(executive privilege claimed and then withdrawn in the district
court. Appeals court rejected applicability of common interest

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doctrine to communications with White House counsel’s office
attorneys and private attorneys for the First Lady)
vi.
In re Sealed Case, 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. H. Doc.
105-310, 105th Cong., 2d Sess. (1998).
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).

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