Order Code RL30319
Presidential Claims of Executive Privilege:
History, Law, Practice and Recent Developments
Updated September 17, 2007
Morton Rosenberg
Specialist in American Public Law
American Law Division

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

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Watergate Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Post-Watergate Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Executive Branch Positions on the Scope of Executive Privilege:
Reagan Through Bush II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Implications and Potential Impact of the Espy and Judicial Watch Rulings
for Future Executive Privilege Disputes . . . . . . . . . . . . . . . . . . . . . . . 16
Recent Developments: Bush II Claims of Executive Privilege . . . . . . . . . . 24
Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Presidential Claims of Executive Privilege From the Kennedy
Administration Through the Bush II Administration . . . . . . . . . . . . . . 29
1. Kennedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3. Nixon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4. Ford and Carter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5. Reagan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6. Bush, George H. W . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7. Clinton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8. Bush, George W . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Presidential Claims of Executive Privilege:
History, Law, Practice and Recent
Developments
Introduction
Presidential claims of a right to preserve the confidentiality of information and
documents in the face of legislative demands have figured prominently, though
intermittently, in executive-congressional relations since at least 1792, when
President Washington discussed with his cabinet how to respond to a congressional
inquiry into the military debacle that befell General St. Clair’s expedition.1 Few such
interbranch disputes over access to information have reached the courts for
substantive resolution, the vast majority achieving resolution through political
negotiation and accommodation.2 In fact, it was not until the Watergate-related
lawsuits in the 1970’s seeking access to President Nixon’s tapes that the existence
of a presidential confidentiality privilege was judicially established as a necessary
derivative of the President’s status in our constitutional scheme of separated powers.
Of the eight court decisions involving interbranch or private 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 most recent appellate court ruling, involving a private group’s right of
access under the Freedom of Information Act to pardon documents in the custody of
1 See Archibald Cox, Executive Privilege, 122 U. of Pa. L. Rev. 1383, 1395-1405 (1979).
See generally, Mark J. Rozelle, Executive Privilege: Presidential Powers, Secrecy, and
Accountability, (2nd Edition, Revised 2002) (Rozelle); Mark J. Rozelle, Executive Privilege
and Modern Presidents: In Nixon’s Shadow, 83 Minn. L. Rev. 1069 (1999).
2 See, Neil Devins, Congressional-Executive Information Access Disputes: A Modest
Proposal-Do Nothing, 48 Adm. L.Rev. 109 (1996) (Devins).
3 United States v. Nixon, 418 U.S. 683 (1974); Nixon v. Sirica, 487 F.2d 700 (D.C. Cir.
1973); Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir 1974); United States v.
AT&T, 551 F.2d 384 (D.C. Cir. 1976), appeal after remand, 567 F.2d 121 (D.C. Cir. 1977);
United States v. House of Representatives, 556 F.Supp. 150 (D.D.C. 1983); Espy , 121 F.3d
729 (D.C. Cir. 1997); In re Grand Jury Proceedings, 5 F. Supp. 2d 21 (D.D.C. 1998);
Judicial Watch v. Department of Justice, 365 F. 3d 1108 (D. C. Cir. 2004).
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 Justice Department, centered on a presidential claim of privilege which was
rejected, and further clarified the law in this area7.
The Nixon and post-Watergate cases established the broad contours of the
presidential communications privilege. Under those precedents, the privilege, which
is constitutionally rooted, could be invoked by the President when asked to produce
documents or other materials or information that reflect presidential decisionmaking
and deliberations that he believes should remain confidential. If the President does
so, the materials become presumptively privileged. The privilege, however, is
qualified, not absolute, and can be overcome by an adequate showing of need.
Finally, while reviewing courts have expressed reluctance to balance executive
privilege claims against a congressional demand for information, they have
acknowledged they will do so if the political branches have tried in good faith but
failed to reach an accommodation.
However, until the District of Columbia Circuit’s 1997 ruling in In re Sealed
Case (Espy)8 and its 2004 decision in Judicial Watch v. Department of Justice9, these
judicial decisions had left important gaps in the law of presidential privilege which
have increasingly become focal points, if not the source, of interbranch
confrontations that has made their resolution more difficult. Among the more
significant issues left open included whether the President has to have actually seen
or been familiar with the disputed matter; whether the presidential privilege
encompasses documents and information developed by, or in the possession of,
officers and employees in the departments and agencies of the Executive Branch;
whether the privilege encompasses all communications with respect to which the
President may be interested or is it confined to presidential decisionmaking and, if
so, is it limited to any particular type of presidential decisionmaking; and precisely
what kind of demonstration of need must be shown to justify release of materials that
qualify for the privilege. The unanimous panel in Espy, and the subsequent
reaffirmation of the principles articulated in Espy by Judicial Watch, authoritatively
addressed each of these issues in a manner that may have drastically altered the future
legal playing field in resolving such disputes.
A more recent dispute with Congress involving the removal and replacement
of nine United States Attorneys has drawn a formal claim of privilege by President
George W. Bush and may serve to amplify the law in this area. It is useful, however,
before proceeding with a description and explication of Espy and Judicial Watch, 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
7 Judicial Watch, supra.
8 121 F.3d 729 (D.C. Cir. 1997).
9 365 F. 3d 1108 (D. C. Cir. 2004).

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frequently rested upon explanations of executive privilege made by the courts. To
better understand the executive’s stance in this area, and the potential impact on those
positions by the Espy and Judicial Watch rulings, 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,10 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,”11 the presumption could be overcome by an appropriate showing of
public need by the branch seeking access to the conversations. In Sirica, “a uniquely
powerful,” albeit undefined, showing was deemed to have been made by the Special
Prosecutor that the tapes subpoenaed by the grand jury contained evidence necessary
to carrying out the vital function of determining whether probable cause existed that
those indicted had committed crimes.12
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
.13 The appeals court initially determined that “[t]he
staged decisional structure established in Nixon v. Sirica” was applicable “with at
least equal force here.”14 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.”15 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.”16 Nor did the court feel that the
Committee had shown that the subpoenaed materials were “critical to the
performance of [its] legislative functions.” 17 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
10 487 F.2d 750 (D.C. Cir. 1973).
11 487 F.2d at 717.
12 Id.
13 498 F.2d 725 (D.C. Cir. 1974).
14 498 F.2d at 730-31.
15 Id. at 731.
16 Id. at 732 (emphasis supplied).
17 Id. (emphasis supplied).

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[presidentially released] transcripts may contain.”18 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.”19
The D.C. Circuit’s view in Senate Select Committee that the Watergate
committee’s oversight need for the requested materials was “merely cumulative” in
light of the then concurrent impeachment inquiry, has been utilized by the Executive
as the basis for arguing that the Congress’ interest in executive information is less
compelling when a committee’s function is oversight than when it is considering
specific legislative proposals.20 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.”21
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
18 Id. at 733.
19 Id.
20 This reading of Select Committee was 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). It is utilized in buttressing
President George W. Bush’s June 28, 2007, privilege claim with respect to demands for
documents and testimony sought by the House and Senate Judiciary Committees relating to
their investigations concerning the dismissal and replacement of nine U.S. Attorneys. See
discussion supra at 24-26.
21 498 F. 2d at 731.

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or long in coming that the Select Committee needs immediate access of its own.”22
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.”23
The Executive’s position arguably ignores the roots of Congress’ broad
investigatory powers that reach back to the establishment of the Constitution and
which have been continually reaffirmed by the Supreme Court. As George Mason
recognized at the Constitutional Convention, Congress “are not only Legislators but
they possess inquisitorial power. They must meet frequently to inspect the Conduct
of the public offices.” 24 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.25
The Supreme Court has cited Wilson favorably on this point.26 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.”27 Thus, to read Senate
Select Committee
as downplaying the status of oversight arguably ignores the court’s
very specific reasons for not enforcing the committee’s subpoena under the unique
circumstance of that case and creates a distinction between oversight and legislating
that has yet to be embraced by the courts. Moreover, the Senate Select Committee
panel’s “demonstrably critical” standard for overcoming a president’s presumptive
claim of privilege is not reflected in any of the subsequent Supreme Court or
22 Id. at 732-33.
23 Id. at 733. It is important to note that the Select committee was established Senate
Resolution 60(1973) as a special investigation committee with no legislative authoirty. Its
sole mission was to determine the facts about the Watergate break-in, and its aftermath, and
report to the Senate its findings and recommendations.
24 2 The Records of the Constitutional Convention of 1787, at 206 (Max Farrand, ed., 1966).
25 Woodrow Wilson, Congressional Government 195, 198 (Meridian Books 1956)(1885).
26 See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 132 (1979).
27 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).

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appellate court rulings establishing a balancing test for overcoming the qualified
presidential privilege.
Two months after the ruling in Senate Select Committee, the Supreme Court
issued its unanimous ruling in United States v. Nixon,28 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.29 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.30 Also,
while acknowledging the need for confidentiality of high level communications in
the exercise of Article II powers, the Court stated that when the privilege depends
solely on the broad, undifferentiated claim of public interest in the confidentiality of
such communications,” a confrontation with other values arises.”31 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.32
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,”33 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 ...”.34 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.” 35
In the last of the Nixon cases, Nixon v. Administrator of General Services36, 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
28 418 U.S. 683 (1974)(Nixon I).
29 418 U.S. 705, 706. See also, id. at 708, 711.
30 Id. at 705, 706, 708.
31 Id. at 706.
32 Id.
33 Id. at 707.
34 Id. at 713.
35 Id. at 712 n. 19.
36 433 U.S. 425 (1977)(Nixon II).

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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.” 37
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.38
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.”’39 Third, the Court found that there was a
“substantial public interest[]” in preserving these materials so that Congress, pursuant
to its “broad investigative power,” could examine them to understand the events that
led to President Nixon’s resignation “in order to gauge the necessity for remedial
legislation.”40
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,41 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.42 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.”43 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.
37 Id. at 439.
38 Id. at 446.
39 Id. at 449 (citations omitted).
40 Id. at 453.
41 567 F.2d 121 (D.C. Cir. 1977).
42 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).
43 Id. at 127 n.17.

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The court rejected the “conflicting claims of the [Executive and the Congress]
to absolute authority.”44 With regard to the executive’s claim, the court noted that
there was no absolute claim of executive privilege against Congress even in the area
of national security:
The executive would have it that the Constitution confers on the executive
absolute discretion in the area of national security. This does not stand up.
While the Constitution assigns to the President a number of powers relating to
national security, including the function of commander in chief and the power
to make treaties and appoint Ambassadors, it confers upon Congress other
powers equally inseparable from the national security, such as the powers to
declare war, raise and support armed forces and, in the case of the Senate,
consent to treaties and the appointment of ambassadors.45
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.”46
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.47 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.48
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].”49 The court suggested, however, that it would
44 Id. at 128.
45 Id. at 128.
46 Id. at 129.
47 Id. at 127-28.
48 Id. at 127 (footnote omitted).
49 Id. at 130.

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resolve the dispute if the political branches failed to reach an accommodation.50 The
court-encouraged negotiations ultimately led to a compromise. Subcommittee staff
was allowed to review some unedited memoranda describing the warrantless wiretaps
and report orally to subcommittee members. The Justice Department retained
custody of the documents.51
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.
52 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.53 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.”54
“Compromise and cooperation, rather than confrontation, should be the aim of the
parties.” 55 As the Court of Appeals had done in United States v. AT&T, the district
court in United States v. House of Representatives encouraged the political branches
to settle their dispute rather than invite judicial intervention. Only if the parties could
not agree would the court intervene and resolve the interbranch dispute, and even
then, the courts advised, “Judicial resolution of this constitutional claim...will never
become necessary unless Administrator Gorsuch becomes a defendant in either a
criminal contempt proceeding or other legal action taken by Congress.”56 Ultimately
the branches did reach an agreement, and the court did not need to balance executive
and congressional interests.57
Executive Branch Positions on the Scope of Executive
Privilege: Reagan Through Bush II

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
50 Id. at 123, 126.
51 Id. at 131-32.
52 556 F.Supp. 150 (D.D.C. 1983).
53 Id. at 151.
54 Id. at 152.
55 Id. at 153.
56 Id. at 152, 153.
57 See Devins, supra, n. 2 at 118-120.

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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
material.58 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.59 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.” 60 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
58 See Smith letter, supra note 20; 5 Op. OLC at 28-31; Barr Memo, supra n.20; 13 Op. OLC
at 187-190; Reno/FALN letter, supra n. 20.
59 See, e.g., 418 U.S. at 705. See also, Smith Letter, supra, note 20, 5 Op. OLC at 29;
Memorandum for All Executive Department and Agency General Counsel’s Re:
Congressional Requests to Departments and Agencies Protected By Executive Privilege,
September 28, 1994, at 1, 2 (Cutler Memo); Letter from Jack Quinn to Hon. William A.
Zellif, Jr., October 1, 1996, at 1 (Quinn Letter/FBI); Memorandum from President Bush to
Secretary of Defense Richard Cheney Re: Congressional Subpoena for an Executive Branch
Document, August 8, 1991, at 1 (Bush Memo).
60 Smith Letter/Watt, supra n. 20 at 31; see also id. at 30 (“congressional oversight interest
will support a demand for predecisional, deliberative documents in the possession of the
Executive Branch only in the most unusual circumstances”). Accord, Barr Memo, supra
n.20 at 192 (“Congress will seldom have any legitimate legislative interest in knowing the
precise predecisional positions and statements of particular Executive Branch officials”.);
letter from Assistant Attorney General Robert Rabkin, Office of Legislative Affairs, DOJ,
to Honorable John Linder, Chairman House Subcommittee on Rules and Organization of the
House, Committee on Rules, June 27, 2000 at 5-6 (Rabkin Letter)(“[T]he Departmen has
a broad confidentiality interest in matters that reflect its internal deliberative process. In
particular, we have sought to ensure that all law enforcement and litigation decisions are
products of open, frank, and independent assessments of the law and facts — uninhibited
by political and improper influences that may be present outside the department. We have
long been concerned about the chilling effect that would ripple throughout government if
prosecutors, policy advisors at all levels and line attorneys believed that their honest opinion
— be it ‘good’ or ‘bad’ - may be the topic of debate in Congressional hearings or floor
debates. These include assessments of evidence and law, candid advice on strength and
weaknesses of legal arguments, and recommendations to take or not to take legal action
against individuals and corporate entities.”).

CRS-11
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.”61
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.”62 Executives have also taken the position
that the privilege covers confidential communications with respect to policymaking
well beyond the confines of the White House and the President’s closest advisors.
The Eisenhower Administration took the most expansive approach, arguing that the
privilege applied broadly to advice on official matters among employees of the
executive branch.63 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.64 The Reagan Justice Department appears to have taken a slightly
61 Smith Letter/Watt, supra n. 20 at 30; see also Statement of Assistant Attorney General
William H. Rehnquist, reprinted in Executive Privilege: The Withholding of Information by
the Executive: Hearings Before the Subcommittee on Separation of Powers of the 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.”); Rabkin Letter id. at n.60 (“The foregoing concerns apply with
special force to Congressional requests for prosecution and declination memoranda and
similar documents. These are extremely sensitive law enforcement materials. The
Department’s attorneys are asked to render unbiased, professional judgments about the
merits of potential criminal and civil law enforcement cases. If their deliberative documents
were made subject to Congressional challenge and scrutiny, we would face a grave danger
that they would be chilled from providing the candid and independent analysis essential to
just and effective law enforcement or just as troubling, that our assessments of the strengths
and weaknesses of evidence of the law, before they are presented in court. That may result
in an unfair advantage to those who seek public funds and deprive the taxpayers of
confidential representation enjoyed by other litigants.”)
62 Smith Letter/Watt, supra n. 20; 5 Op. OLC at 29.
63 See Rozell, supra n.1 at 39 - 40.
64 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:
(continued...)

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narrower view of the scope of the privilege, requiring that the protected
communications have some nexus to the presidential decisionmaking process.65
The George H. W. Bush Administration took the position that recommendations
made to senior department officials and communications of senior policymakers
throughout the executive branch were protected by executive privilege without regard
to whether they involved communications intended to go to the President.66 Finally,
the Clinton administration took a similarly expansive position that all
communications within the White House67 or between the White House and any
federal department or agency68 are presumptively privileged.
The current Bush Administration, through presidential signing statements, 69
executive orders70, and opinions of the Department of Justice’s Office of Legal
64 (...continued)
SENATOR ERVIN: As I construe your testimony, the decisionmaking process
category would apply to communications between presidential advisers and the President
and also to communications made between subordinates of the President when they are
engaged in the process of determining what recommendations they should make to the
President in respect to matters of policy.
MR. REHNQUIST: It would certainly extend that far, yes.
Id. at 439-40. See also Roelle, supra n.1 at 65-66.
65 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).
66 Bush Memo, supra n. 59 at 1. Letter from General Counsel, DOD, Terrence O’Donnell
to Hon. John Conyers, Jr., October 8, 1991, at 5 (O’Donnell Letter).
67 See, e.g., Cutler Memo, supra n. 59 at 2.
68 See, e.g., Cutler Memo, supra n. 59 at 2 (Communications between White House and
departments or agencies, including advice to or from to White House); Reno/FALN letter,
supra n. 20.
69 See Presidential Signing Statements: Constitutional and Institutional Implications, CRS
Report RL33667 by T.J. Halstead, September 20, 2006.
70 See e.g., Executive Order 13233 issued by President Bush on November 1, 2001, which
gave current and former presidents and vice presidents broad authority to withhold
presidential records and delay their release indefinitely. It vests former vice presidents, and
the heirs or designees of disabled or deceased presidents the authority to assert executive
privilege, and expands the scope of claims of privilege. Hearings held by the House
Committee on Government Reform in 2002 raised substantial questions as to the
constitutionality of the Order and resulted in the reporting of legislation (H.R. 4187) in the
107th Congress that would have nullified the Order and established new processes for
presidential claims of privilege and for congressional and public access to presidential
records. H.Rept. No. 107-790, 107th Cong. 2nd Sess. (2002). Substantially the same
legislation (H.R. 1225) passed the House on March 14, 2007. See H.Rept. 110-44, 110th
Cong. 1st Sess. (2007), and was reported out of the Senate Committee on Homeland Security
and Governmental Affairs on June 20, 2007, without amendment and with no written report.
See generally, Jonathan Turley, “Presidential Papers and Popular Government: The
(continued...)

CRS-13
Counsel (OLC) has articulated a legal view of the breadth and reach of presidential
constitutional prerogatives that if applied to information and documents often sought
by congressional committees, would stymie such inquiries.71 In OLC’s view, under
the precepts of executive privilege and the unitary executive, Congress may not
bypass the procedures the President establishes to authorize disclosure to Congress
of classified, privileged, or even non-privileged information by vesting lower-level
officers or employees with a right to disclose such information without presidential
authorization. Thus, OLC has declared that “right of disclosure” statutes
“unconstitutionally limit the ability of the President and his appointees to supervise
and control the work of subordinate officers and employees of the Executive
Branch.”72 The OLC assertions of these broad notions of presidential prerogatives
are unaccompanied by any authoritative judicial citations.
The executive has acknowledged some limits to its use of executive privilege.
Thus, presidents have stated they will not use executive privilege to block
congressional inquiries into allegations of fraud, corruption, or other illegal or
unethical conduct in the executive branch. The Clinton Administration announced
that “[i]n circumstances involving communications relating to investigations of
personal wrongdoing by government officials, it is our practice not to assert
executive privilege, either in judicial proceedings or in congressional investigations
and hearings.”73 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.”74 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.75
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
70 (...continued)
Convergence of Constitutional and Property Theory in Claims of Ownership and Control
of Presidential Records.” 88 Cornell L. Rev. 651, 666-696 (2003).
71 See Letter dated May 21, 2004 to Hon. Alex M. Azar, II, General Counsel, Department
of Health and Human Services from Jack L. Goldsmith III, Assistant Attorney General,
Offic e o f L e ga l Counsel, De partment of J ustice, available at,
[http://www.usdoj.gov/olc/crsmemoresponsese.html]
72 Id.. at 3.
73 Cutler Memo, supra n. 59 at 1.
74 Congressional Subpoenas of Department of Justice Investigative Files, 8 Op. OLC 315
(1984). Accord, Smith Letter/EPA, supra n. 20 at 36 (“These principles will not be
employed to shield documents which contain evidence of criminal or unethical conduct by
agency officials from proper review”.).
75 See David Hoffman, “President Offers to Share Iran Sales Notes with Hill; Aides
Reversed on Memoir Materials.” Washington Post, February 3, 1987, at A1.

CRS-14
hinder” the executive decisionmaking processes.76 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.”77
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.”78 Executive
privilege will be invoked only after “careful review”79 in the “most compelling
circumstances,”80 and only after the executive has done “the utmost to reach an
accommodation” with Congress.81 The George W. 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.82 The duty to seek an
accommodation is said to have been the result of the uncertain boundaries between
executive and legislative interests.83 This uncertainty imposes upon each of the
branches an “obligation ... to accommodate the legitimate needs of the other,”84 and
a duty to conduct “good faith” negotiations.85 Avoiding the disclosure of
embarrassing information is not a sufficient reason to withhold information from
Congress.86 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.”87
76 Olson Memo, supra n. 64 at 486; Rabkin Letter, supra n. 60.
77 Id.; but see Smith Letter/EPA, supra n. 20 at 32 (“policy does not extend to all material
contained in investigative files .... The only documents which have been withheld are those
which are sensitive memoranda or notes by ... attorneys and investigators reflecting
enforcement strategy, legal analysis, lists of potential witnesses, settlement considerations,
and similar materials the disclosure of which might adversely affect a pending enforcement
action, overall enforcement policy, or the rights of individuals”.).
78 Cutler Memo, supra n. 59 at 1. Accord Memorandum from President Reagan for the
Heads of Executive Departments, and Agencies Re: Procedures for Governing Responses
to Congressional Requests for Information, November 4, 1982 (Reagan Memo); Rabkin
Letter, supra n. 60, at 1-2
79 Cutler Memo, supra n. 59 at 1.
80 Reagan Memo, supra n. 74, at 1.
81 Barr Memo, supra n. 20, at 185.
82 Id. at 185, 186. See Rozelle supra n.1 at 106-108.
83 Rehnquist Statement, supra n. 63, at 420.
84 Smith Letter/Watt, supra n. 20, at 31.
85 Reagan Memo, supra n. 74, at 1.
86 Rehnquist Statement, supra n. 63, at 422.
87 Id.

CRS-15
Where negotiations have faltered and the President has made a formal claim of
executive privilege, the executive will likely argue (as the Clinton Administration
did in its invocations of executive privilege88) 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.”89 As has been indicated above, since at least the Reagan
Administration, each executive has argued that Congress’s interest in executive
information is less compelling when the Committee’s function is oversight than when
it is considering specific legislative proposals.
In sum, then, in the absence of further judicial definition of executive privilege
since the Nixon cases, the executive, through presidential signing statements,
executive orders, Office of Legal Counsel Opinions, and, most recently, White
House Counsel directives, has attempted to effect a practical expansion of the scope
of the privilege. The key vehicle has been the notion of deliberative process.
Developed under the Freedom of Information Act to provide limited protection for
the predecisional considerations of agency officials, it has been melded with the
recognized presidential interest in confidentiality of his communications with his
close advisors to include pre-and post-decisional deliberations and the factual
underpinnings of those decisional processes, and is argued to reach policy
deliberations and communications of department and agency officials and employees
in which the President may have an interest. The Clinton Administration sought to
make this doctrinal expansion effective by centralizing scrutiny and control of all
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.90
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
88 Letter from Attorney General Janet Reno to President Clinton, September 20, 1996, at 2-3
(Reno Letter/Haiti); letter from Attorney General Reno to President Clinton, September 30,
1996, at 2 (Reno Letter/FBI); letter from Attorney General Reno to President Clinton,
September 16, 1999 (Reno Letter/FALN). The Acting Attorney General’s opinion
accompanying President George W. Bush’s June 28, 2007, claim of executive privilege,
discussed in infra at 24-26, relies heavily on the Senate Select Committee precedent.
89 498 F.2d at 731.
90 Cutler Memo, supra n. 20 at 2-3.

CRS-16
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.91
Establishing the White House Counsel’s Office as a central clearinghouse and
control center for presidential privilege claims appears to have had the effect of
diminishing the historic role of the Justice Department’s Office of Legal Counsel as
the constitutional counselor to the President and limiting agencies’ ability to deal
informally with their congressional overseers, which is likely to have been its
principal objective. An apparent consequence during the Clinton years was a more
rapid escalation of individual interbranch information disputes clashes, a widening
and hardening of the differences in the legal positions of the branches on privilege
issues, and an increased difficulty in resolving disputes informally and quickly.
President Clinton formally asserted executive privilege fourteen times and resolved
a number of disputes under the pressure of imminent committee actions on contempt
citations and subpoena issuances.92 In addition, the Clinton Administration litigated,
and lost, significant privilege cases between 1997 and 1998.93 One, Espy, 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 the Espy and Judicial
Watch
Rulings for Future Executive Privilege Disputes
In Espy,94 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.
91 Reagan Memo, supra n. 71 at 2.
92 See the Appendix of this Report for a compilation of executive privilege claims from the
Kennedy through the Bush II Administrations.
93 Clinton v. Jones, 520 U.S. 681(1997)(no temporary presidential immunity from civil suit
for unofficial acts); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997),
cert. denied 521 U.S. 1105 (1997)(claims of attorney-client and work product privilege
denied); In re Sealed Case, 121 F.3d 729 (D.C. Cir 1977)(claims of executive privilege
rejected); In re Sealed Case, 124 F.3d 230 (D.C. Cir. 1997)(claims of attorney-client and
work product privilege denied); In re Sealed Case, 148 F. 3d 1073 (D.C. Cir.) cert. denied
525 U.S.990(1998) (claim of “protective function” privilege denied); In re Bruce R.
Lindsey (Grand Jury Testimony), 148 F. 3d 1100 (D.C. Cir. 1998) (claims of attorney-client
and work product privilege denied).
94 121 F.3d 729 (D.C. Cir. 1997).

CRS-17
The case arose out of an Office of Independent Counsel (OIC) investigation of
former Agriculture Secretary Mike Espy. When allegations of improprieties by Espy
surfaced in March of 1994, President Clinton ordered the White House Counsel’s
Office to investigate and report to him so he could determine what action, if any, he
should undertake. The White House Counsel’s Office prepared a report for the
President, which was publically released on October 11, 1994. The President never
saw any of the underlying or supporting documents to the report. Espy had
announced his resignation on October 3, to be effective on December 31. The
Independent Counsel was appointed on September 9 and the grand jury issued a
subpoena for all documents that were accumulated or used in preparation of the
report on October 14, three days after the report’s issuance. The President withheld
84 documents, claiming both the executive and deliberative process privileges for all
documents. A motion to compel was resisted on the basis of the claimed privileges.
After in camera review, the district court quashed the subpoena, but in its written
opinion the court did not discuss the documents in any detail and provided no
analysis of the grand jury’s need for the documents. The appeals court panel
unanimously reversed.
At the outset, the court’s opinion carefully distinguishes between the
“presidential communications privilege” and the “deliberative process privilege.”
Both, the court observed, are executive privileges designed to protect the
confidentiality of executive branch decisionmaking. But the deliberative process
privilege, that applies to executive branch officials generally, is a common law
privilege which requires a lower threshold of need to be overcome, and “disappears
altogether when there is any reason to believe government misconduct has
occurred.”95
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.”96 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.”97 The presidential privilege
95 121 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’”).
96 Id. at 745, 752. See also id. at 753 (“... these communications nonetheless are ultimately
connected with presidential decisionmaking”).
97 Id. at 754. See also id. at 757.

CRS-18
applies to all documents in their entirety98 and covers final and post-decisional
materials as well as pre-deliberative ones.99

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.”100 Thus the privilege will
“apply both to communications which these advisers solicited and received from
others as well as those they authored themselves. The privilege must also extend to
communications authored or received in response to a solicitation by members of a
presidential adviser’s staff.”101
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).
98 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.
99 Id. at 745.
100 Id. at 752.
101 Id.

CRS-19
Of course, the privilege only applies to communications that these advisers and
their staff author or solicit and receive in the course of performing their function
of advising the President on official government matters. This restriction is
particularly important in regard to those officials who exercise substantial
independent authority or perform other functions in addition to advising the
President, and thus are subject to FOIA and other open government statutes. See
Armstrong v. Executive Office of the President, 90 F.3d 553, 558 (D.C. Cir.
1996), cert denied — U.S. — -, 117 S.Ct. 1842, 137 L. Ed.2d 1046 (1997). The
presidential communications privilege should never serve as a means of shielding
information regarding governmental operations that do not call ultimately for
direct decisionmaking by the President. If the government seeks to assert the
presidential communications privilege in regard to particular communications of
these “dual hat” presidential advisers, the government bears the burden of
proving that the communications occurred in conjunction with the process of
advising the President.102
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.”103 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.”104 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.105
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
102 Id. (footnote omitted).
103 Id. at 752.
104 Id. at 752-53.
105 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).

CRS-20
agency heads such as rulemaking, environmental policy, consumer protection,
workplace safety and labor relations, among others, would not necessarily be
covered. Of course, the President’s role in supervising and coordinating (but not
displacing) decisionmaking in the executive branch remains unimpeded. But his
communications in furtherance of such activities would presumably not be cloaked
by constitutional privilege.
Such a reading of this critical passage of the court’s opinion is consonant
with the court’s view of the source and purpose of the presidential
communications privilege and its expressed need to confine it as narrowly as
possible. Relying on Nixon I, the Espy court identifies “the President’s Article II
powers and responsibilities as the constitutional basis of the presidential
communications privilege ... Since the Constitution assigns these responsibilities to
the President alone, arguably the privilege of confidentiality that derives from it also
should be the President’s alone.”106 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.”107 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.”108
The District of Columbia Circuit’s 2004 decision in Judicial Watch, Inc. v.
Department of Justice109 appears to lend substantial support to the above-expressed
understanding of Espy. Judicial Watch involved requests for documents concerning
pardon applications and pardon grants reviewed by the Justice Department’s Office
of the Pardon Attorney and the Deputy Attorney General for consideration by
President Clinton.110 Some 4300 documents were withheld on the grounds that they
were protected by the presidential communications and deliberative process
privileges. The district court held that because the materials sought had been
produced for the sole purpose of advising the President on a “quintessential and non-
delegable Presidential power” — the exercise of the President’s constitutional pardon
authority — the extension of the presidential communications privilege to internal
Justice Department documents which had not been “solicited and received” by the
106 121 F.3d at 748.
107 Id. at 750.
108 Id. at 752.
109 365 F.3d 1108 (D.C. Cir. 2004). The panel split 2-1, with Judge Rogers writing for the
majority and Judge Randolph dissenting.
110 The President has delegated the formal process of review and recommendation of his
pardon authority to the Attorney General who, in turn, has delegated it to the Deputy
Attorney General. The Deputy Attorney General oversees the work of the Office of the
Pardon Attorney.

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President or the Office of the President was warranted.111 The appeals court reversed,
concluding that “internal agency documents that are not solicited and received by the
President or his Office are instead protected against disclosure, if at all, by the
deliberative process privilege.” 112
Guided by the analysis of the Espy ruling, the panel majority emphasized that
the “solicited and received” limitation “is necessitated by the principles underlying
the presidential communications privilege, and a recognition of the dangers of
expanding it too far.”113 Espy teaches, the court explained, that the privilege may be
invoked only when presidential advisers in close proximity to the President, who
have significant responsibility for advising him on non-delegable matters requiring
direct presidential decisionmaking, have solicited and received such documents or
communications or the President has received them himself. In rejecting the
Government’s argument that the privilege should be applicable to all departmental
and agency communications related to the Deputy Attorney General’s pardon
recommendations for the President, the panel majority held that:
Such a bright-line rule is inconsistent with the nature and principles of the
presidential communications privilege, as well as the goal of serving the public
interest .... Communications never received by the President or his Office are
unlikely to “be revelatory of his deliberations ... nor is there any reason to fear
that the Deputy Attorney General’s candor or the quality of the Deputy’s pardon
recommendations would be sacrificed if the presidential communications
privilege did not apply to internal documents .... Any pardon documents, reports
or recommendations that the Deputy Attorney General submits to the Office of
the President, and any direct communications the Deputy or the Pardon Attorney
may have with the White House Counsel or other immediate Presidential
advisers will remain protected .... It is only those documents and
recommendations of Department staff that are not submitted by the Deputy
Attorney General for the President and are not otherwise received by the Office
of the President, that do not fall under the presidential communications
privilege.114
Indeed, the Judicial Watch panel makes it clear that the Espy rationale would
preclude cabinet department heads from being treated as being part of the President’s
immediate personal staff or as some unit of the Office of the President:
Extension of the presidential communications privilege to the Attorney General’s
delegatee, the Deputy Attorney General, and his staff, on down to the Pardon
Attorney and his staff, with the attendant implication for expansion to other
Cabinet officers and their staffs, would, as the court pointed out in In re Sealed
Case
, pose a significant risk of expanding to a large swatch of the executive
111 365 F.3d at 1109-12.
112 Id. at 1112, 1114, 1123.
113 Id. at 1114.
114 Id. at 1117.

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branch a privilege that is bottomed on a recognition of the unique role of the
President.115
The Judicial Watch majority took great pains to explain why Espy and the case
before it differed from the Nixon and post-Watergate cases. According to the court,
“[u]ntil In re Sealed Case, the privilege had been tied specifically to direct
communications of the President with his immediate White House advisors.”116 The
Espy court, it explained, was for the first time confronted with the question whether
communications that the President’s closest advisors make in the course of preparing
advise for the President and which the President never saw should also be covered
by the presidential privilege. The Espy court’s answer was to “espouse[ ] a ‘limited
extension’ of the privilege’ ‘down the chain of command’ beyond the President to his
immediate White House advisors only,” recognizing “the need to ensure that the
President would receive full and frank advice with regard to his non-delegable
appointment and removal powers, but was also wary of undermining countervailing
considerations such as openness in government .... Hence, the [Espy] court
determined that while ‘communications authored or solicited and received’ by
immediate White House advisors in the Office of the President could qualify under
the privilege, communications of staff outside the White House in executive branch
agencies that were not solicited and received by such White House advisors could
not.”117
The situation before the Judicial Watch court tested the Espy principles. While
the presidential decision involved — exercise of the President’s pardon power — was
certainly a non-delegable, core presidential function, the operating officials involved,
the Deputy Attorney General and the Pardon Attorney, were deemed to be too remote
from the President and his senior White House advisors to be protected. The court
conceded that functionally those officials were performing a task directly related to
the pardon decision, but concluded that an organizational test was more appropriate
for confining the potentially broad sweep that would result from a functional test.
Under the latter test, there would be no limit to the coverage of the presidential
communications privilege. In such circumstances, the majority concluded, the lesser
protections of the deliberative process privilege would have to suffice.118 That
privilege was found insufficient and the appeals court ordered the disclosure of the
4300 withheld documents.
It may be noted that, in at least one analogous instance the White House
divulged documents sought by a congressional committee which argued the more
limited reading of Espy. When Espy was decided, the House Resources Committee
was in the midst of an inquiry of President Clinton’s utilization of the Antiquities Act
of 1906,119 which authorizes the President, in his discretion, to declare by public
proclamation objects of historic or scientific interest on federal lands to be national
115 Id. at 1121-22.
116 Id. at 1116.
117 Id. at 1116-117.
118 Id. at 1118-24.
119 16 U.S.C. 431 (2000).

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monuments, by reserving parcels that “shall be confined to the smallest area
compatible with the proper care and management to the objects to be protected.” The
act establishes no special procedures for the decision to declare a national monument
and contains no provision for judicial review. Shortly before the 1996 presidential
election, President Clinton reserved 1.7 million acres in Utah by proclamation.
Central to the Committee’s inquiry as to the propriety and integrity of the
decisionmaking process that led to the issuance of the presidential proclamation were
the actions of the Council on Environmental Quality (CEQ), an office within the
Executive Office of the President with about the same degree of advisory proximity
as that of the White House Counsel’s Office. Requests for physical production of
documents from CEQ met with limited compliance: an offer to view 16 documents
at the White House. The Committee believed that it required physical possession in
order to determine the propriety of the process and issued a subpoena which was not
complied with on the return date.
During intense negotiations, the White House claimed the documents were
covered by the presidential communications privilege, even as defined by Espy. In
a letter to the Committee, the White House Counsel’s Office argued that the opinion
did not confine the privilege to just core Article II powers, but included presidential
decisionmaking encompassed within the Article II duty to take care that the laws be
faithfully executed. It asserted that since the President had the sole authority to
designate a monument by law, that decisional process, including deliberations
among and advice of White House advisers, was covered. The Committee in reply
letters disagreed, arguing that Espy would not encompass a statutory delegation of
decisional authority. On the eve of a scheduled Committee vote on a resolution of
contempt, the White House produced all the documents.120
The narrower reading of Espy by the House Committee also accommodates the
need of Congress for flexibility in assigning tasks for executive fulfillment. It is, of
course, the predominant practice of Congress to delegate the execution of laws to the
heads of departments and agencies. But there are occasions when the nature of the
decisionmaking is deemed so sensitive or important or unique that direct presence of
presidential authority is appropriate. Where the exercise of such authority derives
solely from the statutory delegation and does not find its basis in one of the so-called
“core” constitutional powers of the President, it is a reasonable expectation of the
Congress that it will be able to determine whether and how the legislative intent has
been carried out, just as it does with its assignments to the departments and agencies.
A view that any delegation of decisionmaking authority directly to the President will
thereby cloak it from congressional scrutiny is not only anomalous but arguably
counterproductive of interbranch coordination, cooperation and comity, as it would
120 See 143 Cong. Rec. E2259-2272 (daily ed. November 9, 1997)(Remarks of Hon. James
V. Hansen presenting staff study of committee actions and documents in regard to the
establishment of the Grand Staircase-Escalante National Monument). See also Ruth Larson,
“White House Yields Papers on Utah Wilderness Decision,” Wash. Times, October 23,
1997, A3. Of course, the White House action cannot be deemed a concession of the legal
argument in the absence of an explanation for its decision to disclose the material.

CRS-24
discourage such delegations. 121 Of course, further judicial development of the
principles enunciated in Espy may alter this view of its scope.
Recent Developments: Bush II Claims of Executive Privilege
In early 2007, the House Judiciary Committee and its Subcommittee on
Commercial and Administrative Law commenced an inquiry into the propriety of the
termination and replacement of a number of United States Attorneys. Six hearings
and numerous interviews were held by the committees between March and June
2007, essentially focusing on testimony with respect to actions of present and former
Department of Justice (DOJ) officials and employees as well as DOJ documents
relating to the matter. On March 21, 2007, the House Subcommittee authorized
Chairman John Conyers, Jr. to issue subpoenas to a number of present and former
White House Officials for documents and testimony. On June 13, 2007, Chairman
Conyers issued subpoenas to White House Chief of Staff Joshua Bolten, as custodian
of White House documents, returnable on June 28, 2007, and to former White House
Counsel Harriet Miers, returnable on July 12, 2007.
On June 27, 2007, White House Counsel Fred F. Fielding, at the direction of
President Bush, advised the Chairmen of the House and Senate Judiciary Committees
that document subpoenas issued to the White House custodian of documents and to
two former White House officials, Sara M. Taylor, subpoenaed by the Senate
Judiciary Comittee, and Harriet Miers, relating to those Committees investigations
of the dismissal and replacement of nine U.S. attorneys in 2006, had been deemed by
the President subject to executive privilege and that the subpoena recipients have
been directed not to produce any documents. The Fielding letter also noted that the
testimony sought from Ms. Miers and Ms. Taylor is also subject to a “valid claim of
Executive Privilege,” and will be asserted if the matter cannot be resolved before
dates scheduled for their appearances.122
Accompanying the Fielding letter was a legal memorandum prepared by Acting
Attorney Paul D. Clement for the President detailing the legal basis for a claim of
executive privilege.123 The memo identifies three categories of documents being
sought: (1) internal White House Communications; (2) communications by White
House Officials with individuals outside the Executive Branch, including individuals
in the Legislative Branch; and (3) communications between White House and Justice
Department officials.124 With respect to internal White House communications,
which are said consist of discussions of “the wisdom” of removal and replacement
121 The notion that a congressional delegation of administrative decisionmaking authority
is implicitly a concurrent delegation of authority to the President, is effectively countered
by Professor Kevin Stack in “The President’s Statutory Power to Administer the Laws,” 106
Colum. L. Rev. 263 (2006).
122 Letter dated June 28, 2007 to Chairman Conyers and Leahy from Fred F. Fielding,
Counsel to the President.
123 Memorandum, dated June 27, 2007, for the President from Paul D. Clement, Solicitor
General and Acting Attorney General (Clement Memo).
124 Clement Memo at 1.

CRS-25
proposals, which U.S. Attorneys should be removed, and possible responses to
Congressional and media inquiries, such discussions are claimed to be the “types of
internal deliberations among White House officials [that] fall squarely within the
scope of executive priilege” since their non-disclosure “promote[s] sound
decisionmaking by ensuring that senior Government officials and their advisors may
speak frankly and candidly during the decisionmaking process,” citing U.S. v. Nixon.
Since, it is argued, what is involved is the exercise of the presidential power to
appoint and remove officers of the United States, a “quintessential and nondelegable
Presidential power” (citing Espy), the President’s protected confidentiality interests
“are particularly” strong in this instance. As a consequence, an inquiring
congressional committee would have to meet the standard established by the Senate
Select Committee
decision requiring a showing that the documents and information
are “demonstrably critical to the responsible fulfillment of the Committees
function.”125 Thus, it is claimed, there is doubt whether the Committees have
oversight authority over deliberations essential to the exercise of this core
presidential power or that “their interests justify overriding a claim of executive
privilege as to the matters at issue.”126
With respect to category 2 matters involving communications by White House
officials with individuals outside the White House, the Clement memo asserts that
confidentiality interests undergirding the privilege are not diminished if the President
or his close advisors have to go outside the White House to obtain information to
make an “informed decision,” particularly about a core presidential power. Again,
Espy and Senate Select Committee are referred as supporting authority.
As to the final category, respecting communications between the Justice
Department and the White House concerning proposals to dismiss and replace U.S.
Attorneys, it is claimed that such communications “ are deliberative and clearly fall
within the scope of executive privilege ... [T]he President’s need to protect
deliberations about the selection of U.S. Attorneys is compelling, particularly given
Congress’ lack of legislative authority over the nomination or replacement of U.S.
Attorneys,” citing Espy and Senate Select Committee.127 The privilege is asserted to
extend to White House - DOJ communications “that have been previously disclosed
to the Committees by the Department.” An argument that a waiver may have
occurred is contrary to “relevant legal principles [that] should and do encourage,
rather than punish, such accommodation[s] by recognizing that Congress’ need for
such documents is reduced to the extent similar materials have been provided
voluntarily as part of the accommodation process.” Since the Committees have these
documents, seeking the relevant communications would be cumulative under Senate
Select Committee.
128 This rationale is argued to support the lack of any need for the
testimony of the former White House officials subpoenaed:
125 Clement Memo at 2.
126 Id. at 3.
127 Id at 5-6.
128 Id. at 6.

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Congressional interest in investigating the replacement of U.S. Attorneys clearly
falls outside its core constitutional responsibilities and any legitimate interest
Congress may have in the disclosed communications has been satisfied by the
Department’s extraordinary accommodation involving the extensive production
of documents to the Committees, interviews, and hearing testimony concerning
these communications. As the D.C. Circuit has explained, because “legislative
judgements normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability,” Congress will rarely need or
be entitiled to a “precise reconstruction of past events” to carry out its legislative
responsibilities. Senate Select Comm., 498 F. 2d at 732129
On June 29, 2007, Chairman Conyers and Senate Judiciary Committee
Chairman Patrick Leahy jointly responded to the Fielding letter and Clement
memorandum. Characterizing the White House stance as “based on blanket
executive privilege claims,” which makes it difficult for the Committees “to
determine where privilege truly does and does not apply,” the Committees demanded
that they be provided with a detailed privilege log that includes for each document
withheld a description of the nature, source, subject matter and date of the document;
the name and address of each recipient of an original or copy of the document and the
date received; the name and address of each additional person to whom any of the
contents of the document was disclosed, along with the date and manner of
disclosure; and the specific basis for the assertion of privilege. A deadline for receipt
of the privilege log was set for July 9, 2007.
On July 9, 2007, the White House Counsel refused to comply. On that same
date, counsel to Ms. Miers informed Chairman Conyers that pursuant to letters
received from the White House Counsel, Miers would not testify or produce
documents, and the next day, July 10, announced that Miers would not appear at all.
That same day the DOJ office of Legal Counsel (OLC) issued an opinion that “ Ms.
Miers is [absolutely] immune from compulsion to testify before the Committee on
this mater and therefore is not required to appear to testify about the subject.” 130
Citing previous OLC opinions, the opinion asserts that since the President is the head
of one of the independent branches of the federal government, “If a congressional
committee could force the President’s appearance, fundamental separation of powers
principles –including the President’s independence and autonomy from Congress–
would be threatened.” As a consequence, “[t]he same separation of powers principles
that protect a President from compelled congressional testimony also apply to senior
presidential advisors” because such appearances would be tantamount to the
President himself appearing. The fact that Ms. Miers is a former counsel to the
President does not alter the analysis since, “a presidential advisor’s immunity is
derivative of the President’s.” Neither Ms. Miers nor Mr. Bolten complied on the
return dates of their subpoenas.
129 Id. at 6-7.
130 “Memorandum for the Counsel to the President Re: Immunity of Former Counsel to the
President from Compelled Congressional Testimony” from Principal Deputy Assistant
Attorney General, Office Legal Counsel, DOJ, dated July 10, 2007 (OLC Immunity
Opinion).

CRS-27
On July 12, 2007, the House Subcommittee met and Chairman Sanchez issued
a ruling rejecting Miers’ privilege claims with respect to failing to appear, produce
documents and testify, which was upheld by a 7-5 vote. On July 19 the Subcommittee
Chair ruled against Bolten’s privilege claims with respect to his failure to produce
documents, which was upheld by a 7-5 vote. On July 25, the full Judiciary
Committee voted, 21-17, to issue a report to the House recommending that a
resolution of contempt of Congress against Miers and Bolten be approved.
Thereafter, the White House announced that it would order the United States
Attorney for the District of Columbia not to present the contempt of Congress citation
for grand jury consideration. As of the date of this report, no floor action on the
contempt has been taken.. A press report indicates that the House leadership has
decided not to call for a House vote any earlier than late September or early
October.131
This is the third claim of executive privilege invoked by the Bush
Administration.132 The first was asserted by President Bush on December 12, 2001,
directing Attorney General Ashcroft to refuse to comply with document subpoenas
issued by the House Government Reform Committees as part of the investigation of
alleged law enforcement corruption in the FBI’s Boston Field Office over a period of
almost 30 years. Following two hearings in which the validity of the privilege claim
was the central issue, testimony presenting overwhelming evidence that similar DOJ
documents and testimony had been provided in the face of investigative demands by
jurisdictional committees for over 85 years, despite claims of interference with
prosecutorial deliberations, and a credible threat of a successful contempt vote on the
floor of the House, the documents were relinquished.133
The second claim of privilege, apparently asserted on behalf of the President by
White House Counsel Alberto Gonzales, occurred during the Judicial Watch litigation
over the release of some 4300 pardon documents that were in the custody of the
Pardon Attorney in the Justice Department and that had never been requested by
White House officials or the President. The panel majority held that in light of the
Espy ruling, the presidential communications privilege was inapplicable and ordered
the documents to be released to the requesters.
Concluding Observations
As indicated in the above discussion, recent appellate court rulings cast
considerable doubt on the broad claims of privilege posited by OLC in the past and
now by the Clement Memo and July 10 OLC opinion on witness immunity. Taken
together, Espy and Judicial Watch arguably have effected important qualifications and
131 See, John Bresnahan, “Miers, Bolten Contempt Filings Delayed, “ Politico, September
11, 2007. Available at [http://www.politico.com/news/stories/0907/5750.html].
132 See Appendix.
133 See, “Everything Secret Degenerates: The FBI’s Use of Murderers and Informants”, H.
Rept. No. 108-414, 108th Cong. 2nd Sess. 121-134 (2004).

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restraints on the nature, scope and reach of the presidential communications privilege.
As established by those cases, and until reviewed by the Supreme Court, the following
elements appear to be essential to appropriately invoke the privilege:
1. The protected communication must relate to a “quintessential and non-
delegable presidential power.” Espy and Judicial Watch involved the appointment
and removal and the pardon powers, respectively. Other core, direct precedential
decisionmaking powers include the Commander-in-Chief power, the sole authority
to receive ambassadors and other public ministers, and the power to negotiate
treaties. It would arguably not include decisionmaking with respect to laws that
vest policymaking and administrative implementation authority in the heads of
department and agencies or which allow presidential delegations of authority.
2. The communication must be authored or “solicited and received” by a close
White House advisor (or the President). The judicial test is that an advisor must
be in “operational proximity” with the President. This effectively means that the
scope of the presidential communications privilege extends only to the boundaries
of the White House and the Executive Office complex.
3. The presidential communications privilege remains a qualified privilege that
may be overcome by a showing that the information sought “likely contains
important evidence” and the unavailability of the information elsewhere by an
appropriate investigating authority. The Espy court found an adequate showing of
need by the Independent Counsel; while in Judicial Watch, the court found the
privilege did not apply, and the deliberative process privilege was unavailing.
Definitively applying the teachings of Espy and Judicial Watch to current
withholding claims in a context not yet fully developed would be premature. However,
with respect to the assertion of absolute immunity from congressional process, some
doubts may be raised. The Supreme Court in Nixon flatly rejected the President’s claim
of absolute privilege with respect to confidential presidential communication, allowing
only a qualified constitutional privilege that is presumptive when asserted but which
may be overcome by a proper showing of need and unavailability elsewhere by an
authorized investigating body. Allowing the holder of a qualified privilege to
absolutely cloak from disclosure information possessed by a source that might enable
the investigative body to overcome the presumption arguably thereby renders the
privilege absolute.

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

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5. Reagan. President Reagan directed the assertion of executive privilege
before congressional committees three times: by Secretary of the Interior James Watt
with respect to an investigation of Canadian oil leases (1981-82); by EPA
Administrator Ann Burford with respect to Superfund enforcement practices (1982-83);
and by Justice William Rehnquist during his nomination proceedings for Chief Justice
with respect to memos he had written when he was Assistant Attorney for the Office
of Legal Counsel in the Department of Justice (1986). Rozell, supra, at 98-105.
6. Bush, George H. W. President Bush asserted privilege only once, in 1991,
when he ordered Defense Secretary Cheney not to comply with a congressional
subpoena for a document related to a subcommittee’s investigation of cost overruns in,
and cancellation of, a Navy aircraft program. Rozell, supra, at 108-119.
7. Clinton. President Clinton apparently discontinued the policy of issuing
written directives to subordinate officials to exercise executive privilege. Thus, in
some instances, it is not totally clear when a claim of privilege by a subordinate was
orally directed by the President even if it was shortly withdrawn. The following
documented assertions may arguably be deemed formal invocations. 4 of the assertions
occurred during grand jury proceedings. We list the individual assertions and briefly
identify them.
i.
Kennedy Notes (1995)(executive privilege initially raised but never
formally asserted)(Senate Whitewater investigation). S. Rept. 104-191,
104th Cong., 1st Sess. (1995).
ii.
White House Counsel Jack Quinn/Travelgate investigations
(1996)(House Government Reform). H.Rept. 104-598, 104th Cong., 2d
Sess. (1996).
iii.
FBI-DEA Drug Enforcement Memo (1996)(House Judiciary)
iv.
Haiti/Political Assassinations Documents (1996)(House International
Relations).
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 doctrine
to communications with White House counsel’s office attorneys and
private attorneys for the First Lady).
vi.
Espy, 121 F. 3d 729 (D.C. Cir. 1997)(Espy case)(executive privilege
asserted but held overcome with respect to documents revealing false
statements).
vii. In re Grand Jury Proceedings, 5 F. Supp. 2d 21 (D.D.C.
1998)(executive privilege claimed but held overcome because
testimony of close advisors was relevant and necessary to grand jury
investigation of Lewinski matter and was unavailable elsewhere).

The September 9, 1998, Referral to the House of Representatives by Independent
Counsel Kenneth Starr detailed the following previously undisclosed presidential
claims of executive privilege (viii - xiii) before grand juries that occurred during the
Independent Counsel’s investigations of the Hubbell and Lewinski matters. H. Doc.
105-310, 105th Cong., 2d Sess. (1998).

CRS-31
viii. Thomas “Mack” McLarty (1997)(claimed at direction of President
during Hubbell investigation but withdrawn prior to filing of a motion
to compel).
ix.
Nancy Hernreich (claimed at direction of President but withdrawn prior
to March 20, 1998 hearing to compel).
x.
Sidney Blumenthal (claim rejected by District Court, 5 F. Supp. 2d 21
(D.D.C. 1998) dropped on appeal).
xi.
Cheryl Mills (claimed on August 11, 1998)
xii. Lanny Breuer (claimed on August 4, 1998 and denied by Judge Johnson
on August 11. In re Grand Jury Proceeding. Unpublished Order
(Under Seal) (August 11, 1998).
xiii. Bruce Lindsey (claimed on August 28, 1998).
H. Doc. 105-310, 105th Cong, 2d Sess. 206-209 (1998).
xiv. FALN Clemency (claimed at direction of President by Deputy Counsel
to the President Cheryl Mills on September 16, 1999 in response to
subpoenas by House Government Reform Committee).
8. Bush, George W. President Bush has thus far asserted executive privilege
three times, once by written directive to the Attorney General, and twice by apparent
oral directives to subordinate executive officials to claim the privilege.
i.
President Bush, on December 12, 2001, ordered Attorney General
Ashcroft not to comply with a congressional subpoena, for documents
related to a House Committee’s investigation of corruption in the FBI’s
Boston regional office. The documents were ultimately released shortly
after the conduct of the oversight hearings by the Committee. H.Rept.
108-414, 108th Cong., 1st Sess. (2004).
ii.
Judicial Watch Inc. v. Department of Justice, 365 F. 3d. 1108 (D.C. Cir.
2004) (Rejecting the claimed applicability of the presidential
communications privilege to pardon documents sought under FOIA
from DOJ’s Office of the Pardon Attorney).
iii. Removal and Replacement of U.S. Attorneys (2007). At the direction
of the President , on June 28, 2007, the White House Counsel advised
the House and Senate Judiciary Committees that subpoenas issued for
documents and testimony relating to the firing of U.S. Attorneys in
2006 were subject to a claim of executive privilege and that present and
former White House officials subpoenaed would be ordered not to
comply or to appear at a hearing.