Presidential Claims of Executive Privilege:
History, Law, Practice, and Recent
Developments
Todd Garvey
Legislative Attorney
Alissa M. Dolan
Legislative Attorney
August 21, 2012
Congressional Research Service
7-5700
www.crs.gov
R42670
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Presidential Claims of Executive Privilege
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 of these disputes
are resolved through political negotiation and accommodation. In fact, it was not until the
Watergate-related lawsuits in the 1970s 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. There have
been only four cases involving information access disputes between Congress and the executive,
and two of these resulted in decisions on the merits. The Nixon and post-Watergate cases
established the broad contours of the presidential communications privilege. Under those
precedents, the privilege, which is constitutionally rooted, could be invoked by the President
when asked to produce documents or other materials or information that reflect presidential
decision making and deliberations that he believes should remain confidential. If the President
asserts the privilege, 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 in balancing 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.
Until the District of Columbia Circuit’s 1997 ruling in In re Sealed Case (Espy), and its 2004
decision in Judicial Watch v. Department of Justice, these earlier judicial decisions left
considerable 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, outside of the Executive Office of the President; whether the privilege encompasses all
communications with respect to which the President may be interested or is confined to
presidential decision making and, if so, is limited to a particular type of presidential decision
making; and precisely what kind of demonstration of need must be shown to overcome the
privilege and compel disclosure of the materials. The unanimous panel in Espy, and the
subsequent reaffirmation of the Espy principles articulated in Judicial Watch, 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 drew formal claims of privilege by President George
W. Bush. Those privilege claims were challenged in a civil suit brought by the House Judiciary
Committee seeking declaratory and injunctive relief with respect to refusals to appear, to testify,
and to provide documents by two subpoenaed present and former officials. A district court
decision on the merits upholding the committee’s challenge supplements the D.C. Circuit case
law on this issue.
President Obama formally invoked executive privilege for the first time on June 20, 2012, over
documents sought by the House Committee on Oversight and Government Reform in its ongoing
investigation into Operation Fast and Furious.
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Contents
Introduction...................................................................................................................................... 1
The Watergate Cases........................................................................................................................ 2
Post-Watergate Cases....................................................................................................................... 6
Executive Branch Positions on the Scope of Executive Privilege ................................................... 8
Executive Acknowledged Limits of the Privilege ................................................................... 12
Accommodations Reached Between the Executive and Congress.......................................... 12
Executive Attempts to Expand Executive Privilege ................................................................ 13
Merging the Presidential Communications Privilege with the Deliberative Process
Privilege ......................................................................................................................... 13
Procedures Employed to Assess Potential Privilege Claims ............................................. 14
Implications and Potential Impact of D.C. Circuit Precedent on Future Executive
Privilege Disputes....................................................................................................................... 15
Espy ......................................................................................................................................... 15
Executive Branch Interpretation Immediately Following Espy ........................................ 18
Judicial Watch ......................................................................................................................... 20
Committee on the Judiciary v. Miers ....................................................................................... 21
Loving v. Department of Defense............................................................................................. 29
President Obama’s Assertion of Executive Privilege..................................................................... 30
Operation Fast and Furious Investigation................................................................................ 30
Concluding Observations............................................................................................................... 33
Appendixes
Appendix. Presidential Claims of Executive Privilege From the Kennedy Administration
Through the Obama Administration ........................................................................................... 35
Contacts
Author Contact Information........................................................................................................... 39
Acknowledgments ......................................................................................................................... 39
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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 achieve resolution through political
negotiation and accommodation.2 In fact, it was not until the Watergate-related lawsuits in the
1970s seeking access to President Nixon’s tapes that the existence of a presidential confidentiality
privilege was judicially established as a necessary derivative of the President’s status in the U.S.
constitutional scheme of separated powers. Litigation over the scope of executive privilege in
direct relation to congressional oversight and investigations has also been quite limited. In total,
there have been only four cases dealing with executive privilege in the context of information
access disputes between Congress and the executive,3 and only two of those resulted in decisions
on the merits.4 Indeed, the Supreme Court has never addressed executive privilege in the face of a
congressional demand for information.
The Nixon era cases initially 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 decision making 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 in balancing 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)5 and its
2004 decision in Judicial Watch v. Department of Justice,6 existing precedent left important gaps
in the law of presidential privilege that have increasingly become focal points, if not the source,
of interbranch confrontations. Many significant issues remained unresolved, including 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 outside the
1 See Archibald Cox, Executive Privilege, 122 U. PA. L. REV. 1383, 1395-1405 (1979). See generally Mark J. Rozell,
EXECUTIVE PRIVILEGE: PRESIDENTIAL POWERS, SECRECY, AND ACCOUNTABILITY, (2d ed., rev. 2002) [hereinafter Rozell,
PRESIDENTIAL POWERS); Mark J. Rozell, Executive Privilege and Modern Presidents: In Nixon’s Shadow, 83 MINN. L.
REV. 1069 (1999) [hereinafter Rozell, Modern Presidents].
2 See Neil Devins, Congressional-Executive Information Access Disputes: A Modest Proposal-Do Nothing, 48 ADM. L.
REV. 109 (1996).
3 United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976) [hereinafter AT&T I]; Senate Select Comm. on Presidential
Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) [hereinafter Senate Select Comm.]; Comm. on the
Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008); United States v. House of Representatives, 556 F. Supp. 150
(D.D.C. 1983).
4 Senate Select Comm., 498 F.2d 725; Miers, 558 F. Supp. 2d 53.
5 121 F.3d 729 (D.C. Cir. 1997).
6 365 F.3d 1108 (D.C. Cir. 2004).
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Executive Office of the President; whether the privilege encompasses all communications in
which the President may be interested or if it is confined to presidential decision making or a
particular type of presidential decision making; and precisely what kind of demonstration of need
can justify the release of privileged materials. The unanimous panel in Espy, and the subsequent
reaffirmation of the Espy principles in Judicial Watch, addressed each of these issues in a manner
that may have drastically altered the future legal playing field in resolving such disputes.7
A more recent dispute with Congress involving the removal and replacement of nine United
States Attorneys drew formal claims of privilege by President George W. Bush. Those privilege
claims were successfully challenged in a civil suit brought by the House Judiciary Committee
seeking declaratory and injunctive relief arising from refusals by subpoenaed present and former
senior presidential aides to appear, testify, or provide documents.8 The district court held that
senior presidential advisors do not enjoy absolute immunity from compelled testimony or
production of documents pursuant to a congressional subpoena.9 Before discussing Espy and
Judicial Watch in detail, it is useful 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 1980s, executive statements and positions
taken to justify assertions of executive privilege have frequently rested upon explanations of
executive privilege offered by the courts. To better understand the executive’s stance in this area,
and the potential impact the Espy and Judicial Watch rulings may have on those positions, this
report will chronologically examine the development of the judiciary’s approach to executive
privilege 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, the Court of Appeals for 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. The court held
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, who argued that the tapes subpoenaed by the grand jury
contained evidence vital to 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
7 However, it is important to note that these cases did not arise in a congressional-executive dispute context, but rather
out of a grand jury subpoena and a FOIA request, respectively.
8 See generally Miers, 558 F. Supp. 2d 53.
9 Id. at 100-07.
10 487 F.2d 750 (D.C. Cir. 1973).
11 Id. at 757.
12 Id.
13 498 F.2d 725 (D.C. Cir. 1974).
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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 It elaborated 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 [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 Congress’s
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’s 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 facts included the commencement of impeachment proceedings by
14 Id. 730-31.
15 Id. at 731.
16 Id. at 732 (emphasis supplied).
17 Id. (emphasis supplied).
18 Id. at 733.
19 Senate Select Comm., 498 F.2d at 733.
20 This reading of Senate Select Committee was a persistent characteristic of the statements of the Reagan, George
H.W. Bush and Clinton Administrations. See, e.g., Letter from Attorney General William French Smith to President
Reagan, October 31, 1981, reprinted in 5 Op. O.L.C. 27, 30 (1981) [hereinafter Smith Letter/Watt]; Memorandum to
General Counsels’ Consultative Group Re: Congressional Requests for Confidential Executive Branch Information, 13
Op. O.L.C. 153, 157 (1989) [hereinafter Barr Memo]; Letter from Attorney General Janet Reno to President Clinton,
September 20, 1996, at 2-3 [hereinafter Reno Letter/Haiti]; Letter from Attorney General Janet Reno to President
Clinton, September 16, 1999 [hereinafter Reno Letter/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 also Appendix, “Bush, George W.”.
21 Senate Select Comm., 498 F.2d at 731.
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the House Judiciary Committee, a committee with an “express constitutional source” of
investigative power, whose “investigative objectives substantially overlap” those of the Senate
Committee; the House Committee’s present 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 need to possess the tapes in order to make “legislative judgments has been substantially
undermined by subsequent events,” including the public release of the tape transcripts by the
President; the transfer of four of five of the original tapes to the district court; and the lack of any
“indication that the findings of the House Committee on the Judiciary and, eventually, the House
of Representatives itself, are so likely to be inconclusive or long in coming that the Select
Committee needs immediate access of its own.”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’s broad investigatory powers,
which reach back to the establishment of the Constitution and have been continually reaffirmed
by the Supreme Court. As George Mason recognized at the Constitutional Convention, Members
of 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’s right to executive branch information to use in support
of its oversight function versus its responsibility to enact, amend, and repeal laws. In fact, the
Court has recognized that Congress’s 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
22 Id. at 732-33.
23 Id. at 733. It is important to note that the Select Committee was established by Senate Resolution 60 as a special
investigation committee with no legislative authority. Its sole mission was to determine the facts about the Watergate
break-in and its aftermath and report to the Senate its findings and recommendations. S.Res. 60, 93rd Cong. (1973).
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, 273 U.S. 135, 177 (1926);
Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 n.15 (1975).
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that case and creates a distinction between oversight and legislating that has yet to be embraced
by the courts. Moreover, the Senate Select Committee panel’s “demonstrably critical” standard for
overcoming a President’s presumptive claim of privilege is not reflected in any of the subsequent
Supreme Court or appellate court rulings establishing a balancing test for overcoming the
qualified presidential privilege.
Two months after the ruling in Senate Select Committee, the Supreme Court issued its unanimous
ruling in United States v. Nixon (Nixon I),28 which involved a judicial trial subpoena issued to the
President at the request of the Watergate Special Prosecutor requesting 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 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 and precluded judicial review whenever it is asserted.30 The Court
acknowledged the need for confidentiality of high-level communications in the exercise of Article
II powers, but stated that “a confrontation with other values arises” when the privilege is asserted
based on a broad, undifferentiated claim of public interest in the confidentiality of such
communications.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
After concluding that the claim of privilege was qualified, the Court moved on to resolving the
“competing interests” at stake: the President’s need for confidentiality versus the judiciary’s need
for evidence in a criminal proceeding. Evaluating these interests “in a manner that preserves the
essential functions of each branch,”33 the Court held 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 Services (Nixon II),36 the
Supreme Court again balanced competing interests in President Nixon’s White House records.
The Presidential Recordings and Materials Preservation Act37 granted custody of President
Nixon’s presidential records to the Administrator of the General Services Administration, who
28 418 U.S. 683 (1974) [hereinafter Nixon I].
29 Id. at 705-06, 708, 711.
30 Id. at 705-06, 708.
31 Id. at 706.
32 Id.
33 Id. at 707.
34 Nixon I, 418 U.S. at 713.
35 Id. at 712 n.19.
36 433 U.S. 425 (1977) [hereinafter Nixon II].
37 P.L. 93-526, 88 Stat. 1695 (1974).
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would screen them for personal and private materials, to be returned to President Nixon, and
preserve the rest for historical and governmental objectives. The Court rejected President Nixon’s
challenge to the act, which included an argument based on the “presidential privilege of
confidentiality.”38 Although Nixon II did not involve an executive response to a congressional
probe, several points emerge from the Court’s discussion that bear upon Congress’s interest in
confidential executive branch information. First, the Court reiterated that the executive privilege
it had announced in Nixon I was not absolute, but qualified.39 Second, the Court stressed the
narrow scope of that executive privilege. “In [Nixon I] the Court held that the privilege is limited
to communications ‘in performance of [a President’s] responsibilities ... of his office’ ... and made
in the process of shaping policies and making decisions.”40 Third, the Court found that there was
a “substantial public interest[]” in preserving these materials so that Congress, pursuant to its
“broad investigative power,” could examine them to understand the events that led to President
Nixon’s resignation “in order to gauge the necessity for remedial legislation.”41
Post-Watergate Cases
Two post-Watergate cases, both involving congressional demands for access to executive
information, demonstrate both the judiciary’s reluctance to get involved in the essentially political
confrontations such disputes represent and a willingness to intervene where the political process
appears to be failing.
In United States v. AT&T,42 the D.C. Circuit was unwilling to balance executive privilege claims
against a congressional demand for information unless and until the political branches had tried in
good faith but failed to reach an accommodation.43 In that case, the Justice Department sought to
enjoin AT&T’s compliance with a subpoena issued by a House subcommittee. The subcommittee
was seeking FBI letters sent to AT&T requesting its assistance with warrantless wiretaps on U.S.
citizens allegedly conducted for national security purposes. The Justice Department argued that
the executive branch was entitled to sole control over the information because of “its obligation to
safeguard the national security.”44 The House of Representatives, as intervenor, argued that its
rights to the information flowed from its constitutionally implied power to investigate whether
there had been abuses of the wiretapping power. The House also argued that the court had no
jurisdiction over the dispute because of the Speech or Debate Clause.
The court rejected the “conflicting claims of the [Executive and the Congress] to absolute
authority.”45 With regard to the executive’s claim, the court noted that there was no absolute claim
of executive privilege in response to congressional requests even in the area of national security:
38 Nixon II, 433 U.S. at 439.
39 Id. at 446.
40 Id. at 449 (internal citations omitted).
41 Id. at 453.
42 567 F.2d 121 (D.C. Cir. 1977) [hereinafter AT&T II].
43 This was the second time the case was before the court. After its initial review it was remanded to the district court to
allow the parties further opportunity to negotiate an accommodation. See AT&T I, 551 F.2d 384.
44 AT&T II, 567 F.2d at 127 n.17.
45 Id. at 128.
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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.46
Likewise, the court rejected the congressional claim that the Speech or Debate Clause was
“intended to immunize congressional investigatory actions from judicial review. Congress’
investigatory power is not, itself, absolute.”47
According to the court, judicial intervention in executive privilege disputes between the political
branches is improper unless the branches have made a good faith effort at compromise without
result.48 The court held that there is a constitutional duty for the executive and Congress to
attempt to accommodate each other’s needs:
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.49
The court refused to resolve the dispute because the executive and Congress had not yet made
that constitutionally mandated effort at accommodation. Instead, the court “encouraged
negotiations in order to avoid the problems inherent in [the judiciary] formulating and applying
standards for measuring the relative needs of the [executive and legislative branches].”50 The
court suggested, however, that it would resolve the dispute if the political branches failed to reach
an accommodation.51 The court-encouraged negotiations ultimately led to a compromise.
Subcommittee staff were allowed to review unedited memoranda describing the warrantless
wiretaps and report orally to subcommittee members. The Justice Department, however, retained
custody of the documents.52
The U.S. District Court for the District of Columbia displayed the same reluctance to intervene in
an executive privilege dispute with Congress in United States v. House of Representatives.53 There
the court dismissed a suit brought by the Justice Department seeking a declaratory judgment that
the Administrator of the Environmental Protection Agency (EPA), Anne Gorsuch Burford, “acted
46 Id.
47 Id. at 129.
48 Id. at 127-28.
49 Id. at 127 (internal citations omitted).
50 AT&T II, 567 F.2d at 130.
51 Id. at 123, 126.
52 Id. at 131-32.
53 556 F. Supp. 150 (D.D.C. 1983).
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lawfully in refusing to release certain documents to a congressional subcommittee” at the
direction of the President.54 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.... Compromise and cooperation, rather than confrontation, should be the
aim of the parties.”55 As the appeals court had done in 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. The court would intervene and resolve the interbranch dispute only if
the parties could not agree. Even then, the courts advised, “Judicial resolution of this
constitutional claim ... will never become necessary unless Administrator Gorsuch [Burford]
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
Unsurprisingly, the executive branch has developed an expansive view of executive privilege in
relation to 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 it believes are presumptively covered by
executive privilege: foreign relations and military affairs, two separate topics that are sometimes
lumped together as “state secrets”; law enforcement investigations; and confidential information
that reveals the executive’s “deliberative process” with respect to policymaking.58 Typically, the
executive has asserted executive privilege based upon a combination of deliberative process and
one or more of the other categories. Consequently, much of the controversy surrounding
invocation of executive privilege has centered on the scope of the deliberative process category.
The executive has argued that at its core this category protects confidential predecisional
deliberative material from disclosure.59 Justifications for this exemption often draw upon the
language in Nixon I that identifies a constitutional value in the President receiving candid advice
from his subordinates and awareness that any expectation of subsequent disclosure might temper
needed candor.60 The result has been a presumption by the executive that its predecisional
54 Id. at 151.
55 Id. at 152-53.
56 Id. at 152, 153.
57 See Devins, supra, note 2, at 118-20.
58 See Memorandum for the Attorney General Re: Confidentiality of the Attorney General’s Communications in
Counseling the President, 6 Op. O.L.C. 481, 484-90 (1982) [hereinafter Olson Memo]; Barr Memo, supra note 20, at
154.
59 See Smith Letter/Watt, supra note 20, at 28-31; Barr Memo, supra note 20, at 187-90; Reno Letter/FALN, supra note
20.
60 See, e.g., Nixon I, 418 U.S. at 705. See also Smith Letter/Watt, supra note 20, 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 [hereinafter Cutler Memo]; Letter from Jack Quinn to Hon. William
A. Zellif, Jr., October 1, 1996, at 1 [hereinafter Quinn Letter/FBI]; Memorandum from President Bush to Secretary of
(continued...)
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deliberations are beyond the scope of congressional demand. “Congress will have a legitimate
need to know the preliminary positions taken by Executive Branch officials during internal
deliberations only in the rarest of circumstances.”61 According to this view, the need for the
executive to prevent disclosure of its deliberations is at its apex when Congress attempts to
discover information about ongoing policymaking within the executive branch. In that case, the
executive has argued, the deliberative process exemption serves as an important boundary
marking the separation of powers. When congressional oversight “is used as a means of
participating directly in an ongoing process of decisionmaking within the Executive Branch, it
oversteps the bounds of the proper legislative function.”62
The executive has also argued that because candor is the principal value served by this category,
its protection should extend beyond predecisional deliberations to deliberations involving
decisions already made. “Moreover, even if the decision at issue had already been made,
disclosure to Congress could still deter the candor of future Executive Branch deliberations.”63
Executives have also taken the position that the privilege covers confidential communications
with respect to policymaking well beyond the confines of the White House and the President’s
closest advisors. The Eisenhower Administration took the most expansive approach, arguing that
(...continued)
Defense Richard Cheney Re: Congressional Subpoena for an Executive Branch Document, August 8, 1991, at 1
[hereinafter Bush Memo].
61 Smith Letter/Watt, supra note 20, at 31; accord Barr Memo, supra note 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 (“[T]he Department has a broad confidentiality interest in matters that reflect its internal
deliberative process. In particular, we have sought to ensure that all law enforcement and litigation decisions are
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.”) [hereinafter Rabkin
Letter]; see also Smith Letter/Watt, supra note 20, 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”).
62 Smith Letter/Watt, supra note 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, 92nd Cong., 1st Sess. 424 (“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.”) [hereinafter Rehnquist
Statement]; Rabkin Letter, supra note 61 (“The foregoing concerns apply with special force to Congressional requests
for prosecution and declination memoranda and similar documents. These are extremely sensitive law enforcement
materials. The Department’s attorneys are asked to render unbiased, professional judgments about the merits of
potential criminal and civil law enforcement cases. If their deliberative documents were made subject to Congressional
challenge and scrutiny, we would face a grave danger that they would be chilled from providing the candid and
independent analysis essential to just and effective law enforcement or just as troubling, that our assessments of the
strengths and weaknesses of evidence of the law, before they are presented in court. That may result in an unfair
advantage to those who seek public funds and deprive the taxpayers of confidential representation enjoyed by other
litigants.”).
63 Smith Letter/Watt, supra note 20, at 29.
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the privilege applied broadly to advice on official matters among all employees of the executive
branch.64 The Nixon Administration appears to have taken a similar view, arguing that the
privilege applied to decision making at a “high governmental level,” but conceding that the
protected communication must be related to presidential decision making.65 The Reagan Justice
Department appears to have taken a slightly narrower view of the scope of the privilege, requiring
that the protected communications have some nexus to the presidential decision-making
process.66
The George H. W. Bush Administration took the position that recommendations made to senior
department officials and communications of senior policymakers throughout the executive branch
were protected by executive privilege without regard to whether they involved communications
intended to go to the President.67 The Clinton Administration took a similarly expansive position
that all communications within the White House68 or between the White House and any federal
department or agency69 are presumptively privileged.
The George W. Bush Administration, through presidential signing statements,70 executive
orders,71 and opinions of the Department of Justice’s Office of Legal Counsel (OLC), articulated
64 See Rozell, supra note 1, at 39-40.
65 In his prepared statement to the Subcommittee on Separation of Powers of the Senate Judiciary Committee, Assistant
Attorney General Rehnquist distinguished between “those few executive branch witnesses whose sole responsibility is
that of advising the President” who “should not be required to appear [before Congress] at all, since all of their official
responsibilities would be subject to a claim of privilege” and “the executive branch witness ... whose responsibilities
include the administration of departments or agencies established by Congress, and from whom Congress may quite
properly require extensive testimony,” subject to “appropriate” claims of privilege. Rehnquist Statement, supra note 62,
at 427. Moreover, in colloquy with Senator Ervin, Mr. Rehnquist seemed to accept that the privilege protected only
communications with some nexus to presidential decision making:
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 Rozell, supra note 1, at 65-66.
66 See Olson Memo, supra note 58, at 489.
67 Bush Memo, supra note 60, at 1; Letter from General Counsel, DOD, Terrence O’Donnell to Hon. John Conyers, Jr.,
October 8, 1991, at 5 [hereinafter O’Donnell Letter].
68 See, e.g., Cutler Memo, supra note 60, at 2.
69 See, e.g., id. (Communications between White House and departments or agencies, including advice to or from to
White House); Reno Letter/FALN, supra note 20.
70 See CRS Report RL33667, Presidential Signing Statements: Constitutional and Institutional Implications, by Todd
Garvey.
71 See, e.g., Executive Order 13233 issued by President Bush on November 1, 2001, which gave current and former
Presidents and Vice Presidents broad authority to withhold presidential records and delay their release indefinitely. It
vests former Vice Presidents, and the heirs or designees of disabled or deceased presidents the authority to assert
executive privilege, and expands the scope of claims of privilege. Hearings held by the House Committee on
Government Reform in 2002 raised substantial questions as to the constitutionality of the Order and resulted in the
reporting of legislation (H.R. 4187) in 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.
107-790, 107th Cong. 2nd Sess. (2002). Substantially the same legislation (H.R. 1255) 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 Convergence of Constitutional and Property
(continued...)
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a legal view of the breadth and reach of presidential constitutional prerogatives that would stymie
requests for information and documents often sought by congressional committees.72 In OLC’s
view, under the precepts of executive privilege and the unitary executive, Congress may not
bypass the procedures the President establishes to authorize disclosure to Congress of classified,
privileged, or even non-privileged information by vesting lower-level officers or employees with
a right to disclose such information without presidential authorization. Thus, OLC has declared
that “right of disclosure” statutes “unconstitutionally limit the ability of the President and his
appointees to supervise and control the work of subordinate officers and employees of the
Executive Branch.”73 The OLC’s assertions of these broad notions of presidential prerogatives are
unaccompanied by any authoritative judicial citations.
The Obama Administration has only rarely taken formal positions on executive privilege. As such
there is limited evidence with which to glean the Administration’s view of the privilege. On his
first day in office President Obama narrowed the scope of executive privilege with respect to
former Presidents by revoking and replacing an executive order issued by President George W.
Bush relating to a former President’s authority to invoke executive privilege over records released
under the Presidential Records Act by the Archivist of the United States.74 Whereas the Bush
executive order required the approval of both the former and current President before release of
past presidential documents, the Obama executive order does not require the former President to
concur in the final determination of whether the documents may be disclosed, and therefore vests
ultimate decision making in the current Administration.75
Like past Administrations, the Obama Administration has utilized signing statements to object to
various statutory provisions pertaining to Congress’s authority to obtain information from the
executive branch.76 Yet, the Obama signing statements have not referred to “executive privilege”
by name as the legal justification for the objection. The context of a number of signing
statements, however, indicates that executive privilege is, at least in part, the legal doctrine being
asserted.77
(...continued)
Theory in Claims of Ownership and Control of Presidential Records, 88 CORNELL L. REV. 651, 666-96 (2003).
72 See Letter dated May 21, 2004 to Hon. Alex M. Azar, II, General Counsel, Department of Health and Human
Services from Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, Department of Justice,
available at, http://www.usdoj.gov/olc/crsmemoresponsese.htm [hereinafter Azar Letter]. This broad view of
presidential privilege was repeated in Attorney General Mukasey’s request to the President that he claim executive
privilege with respect to a House Committee subpoena for DOJ documents in an investigation by a DOJ Special
Counsel in the revelation of a CIA agent’s identity. See Letter to the President from Attorney General Mukasey, dated
July 15, 2008. See also Appendix, “Bush, George W.”.
73 Azar Letter at 3.
74 Exec. Order No. 13489 (Jan. 21, 2009) (revoking Exec. Order No. 13233 (Nov. 1, 2001)).
75 Id.
76 See, CRS Report RL33667, Presidential Signing Statements: Constitutional and Institutional Implications, by Todd
Garvey.
77 See, Statement of President Barack Obama Upon Signing H.R. 1105, March 11, 2009 (objecting to §714(1) and
§714(2)); Statement of President Barack Obama Upon Signing S. 386, May 20, 2009 (objecting to §5(d)); Statement of
President Barack Obama Upon Signing H.R. 2701, October 7, 2010 (objecting to §331 and §405); Statement of
President Barack Obama Upon Signing H.R. 1473, April 15, 2011 (objecting to §2262).
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Executive Acknowledged Limits of the Privilege
The executive branch 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.”78 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.”79
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.80
The executive has often tied its willingness to forgo assertions of executive privilege to the
deliberative process exemption from disclosure that it recognizes, stating that it would not seek to
protect materials whose disclosure “would not implicate or hinder” the executive decision-
making processes.81 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.”82
Accommodations Reached Between the Executive and Congress
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.”83 Therefore, executive privilege will be invoked only after “careful review”84
in the “most compelling circumstances,”85 and only after the executive has done “the utmost to
78 Cutler Memo, supra note 59, at 1.
79 Congressional Subpoenas of Department of Justice Investigative Files, 8 Op. O.L.C. 315 (1984). Accord Assertion of
Executive Privilege in Response to Congressional Demands for Law Enforcement Files, 6 Op. O.L.C. 31, 36 (1982)
(“These principles will not be employed to shield documents which contain evidence of criminal or unethical conduct
by agency officials from proper review.”) [hereinafter Smith Letter/EPA].
80 See David Hoffman, President Offers to Share Iran Sales Notes with Hill; Aides Reversed on Memoir Materials,
WASH. POST, Feb. 3, 1987, at A1.
81 Olson Memo, supra note 58, at 486; Rabkin Letter, supra note 61.
82 Id. But see Smith Letter/EPA, supra note 79, 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”).
83 Cutler Memo, supra note 60, 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 [hereinafter Reagan Memo]; Rabkin Letter, supra note 61, at 1-2
84 Cutler Memo, supra note 60, at 1.
85 Reagan Memo, supra note 83, at 1.
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reach an accommodation” with Congress.86 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.87 The duty to seek an accommodation is said to have
been the result of the uncertain boundaries between executive and legislative interests.88 This
uncertainty imposes upon each of the branches an “obligation ... to accommodate the legitimate
needs of the other,”89 and a duty to conduct “good faith” negotiations.90 Avoiding the disclosure
of embarrassing information is not a sufficient reason to withhold information from Congress.91
In fact, it has been asserted 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.”92
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 privilege)93 that the investigating committee has not made the showing required to
overcome the privilege under Senate Select Committee v. Nixon: that the subpoenaed evidence is
“demonstrably critical to the responsible fulfillment of the Committee’s functions.”94 As indicated
above, since at least the Reagan Administration, each Administration has argued that Congress’s
interest in executive information is less compelling when the committee is exercising its oversight
authority rather than considering specific legislative proposals.
Executive Attempts to Expand Executive Privilege
Merging the Presidential Communications Privilege with the Deliberative
Process Privilege
Without further judicial consideration of executive privilege since the Nixon cases, the executive,
through presidential signing statements, executive orders, OLC 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. The idea of the deliberative
process privilege was developed under the Freedom of Information Act (FOIA) to provide limited
protection for communications and documents evidencing the predecisional considerations of
agency officials. Over time, the executive branch has melded this deliberative process idea with
the recognized confidentiality interest in the President’s communications with close advisors,
86 Barr Memo, supra note 20, at 185.
87 Id. at 185, 186; see Rozell, supra note 1, at 106-08.
88 Rehnquist Statement, supra note 62, at 420.
89 Smith Letter/Watt, supra note 20, at 31.
90 Reagan Memo, supra note 83, at 1.
91 Rehnquist Statement, supra note 62, at 422.
92 Id.
93 Letter from Attorney General Janet Reno to President Clinton, September 20, 1996, at 2-3 [hereinafter Reno
Letter/Haiti]; Letter from Attorney General Reno to President Clinton, September 30, 1996, at 2 [hereinafter Reno
Letter/FBI]; Letter from Attorney General Reno to President Clinton, September 16, 1999 [hereinafter 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.
94 498 F.2d at 731.
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such that the privilege would extend to any policy deliberations or communications within the
executive branch in which the President may have an interest.
For example, the legal justifications asserted by the Obama Administration for withholding
documents from Congress during a House probe into “Operation Fast and Furious”95 appear to
reflect a heavy reliance on the deliberative process privilege. In a letter to the President asking
him to invoke executive privilege over the subpoenaed documents, Attorney General Eric Holder
noted that “Presidents have repeatedly asserted executive privilege to protect confidential
Executive Branch deliberative materials from congressional subpoena.”96 The Attorney General
went on to argue that “[i]t is well established that ‘the doctrine of executive privilege ...
encompasses Executive Branch deliberative communications.’”97 The Attorney General’s
memorandum made no mention of a distinction between the deliberative process privilege and the
presidential communications privilege; nor did the memorandum reference the D.C. Circuit cases
of Espy and Judicial Watch.
Procedures Employed to Assess Potential Privilege Claims
Under the Reagan Administration, if the head of an agency, with the advice of agency counsel,
decided that a congressional information request raised substantial questions, the Attorney
General, through the Office of Legal Counsel and the White House Counsel’s Office, was
promptly notified and consulted. If one or more of these advisors deemed the issue substantial,
the President was informed, made a decision, and the agency head informed Congress of that
decision. The Reagan memo pinpointed national security, deliberative communications that form
part of the decision-making process, and other information important to the discharge of
executive branch constitutional responsibilities as covered by the privilege.98 This definition was
far narrower than his successors’ understanding of the privilege.
The Clinton Administration sought to expand the doctrine by centralizing scrutiny and control of
all potential claims of executive privilege in the White House Counsel’s Office. The White House
Counsel instructed all agency heads to notify his office directly of congressional requests 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” that may raise privilege issues. The White House
Counsel is to seek an accommodation and if unsuccessful, consult with the Attorney General to
determine whether to recommend invocation of the privilege to the President. The President then
determines whether to claim privilege, which is then communicated to Congress by the White
House Counsel.99
Establishing the White House Counsel’s Office as a central clearinghouse 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
95 See, infra, “President Obama’s Assertion of Executive Privilege”
96 Letter to President Barack Obama, from Eric Holder, Attorney General, June 19, 2012 at 3.
97 Id.
98 Reagan Memo, supra note 71, at 2.
99 Cutler Memo, supra note 20, at 2-3.
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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 14 times and resolved a number of disputes under the pressure of imminent
committee actions on subpoena issuances and contempt citations.100 In addition, the Clinton
Administration litigated, and lost, significant privilege cases in 1997 and 1998.101 The first case,
Espy, 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 D.C. Circuit
Precedent on Future Executive Privilege Disputes
Espy
In Espy,102 the appeals court addressed several important issues left unresolved by the Watergate
cases: the precise parameters of the presidential executive privilege; how far down the chain of
command the privilege reaches; whether the President has to have seen or had knowledge of the
existence of the documents for which he claims privilege; and what showing is necessary to
overcome a valid claim of privilege.
The case arose out of an Office of Independent Counsel (OIC) investigation of former Agriculture
Secretary Mike Espy. When allegations of improprieties against 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 publicly released on October 11, 1994. The Espy
court noted that the President never saw any of the report’s underlying or supporting documents.
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 types of
executive privilege for all documents. A motion to compel was resisted on the basis of the
claimed privilege. 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.
100 See the Appendix of this Report for a compilation of executive privilege claims from the Kennedy through the
Obama Administrations.
101 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) [hereinafter Espy]; In re Sealed Case, 124 F.3d 230 (D.C. Cir. 1997) (claims of attorney-
client and work product privilege denied); In re Sealed Case, 148 F.3d 1073 (D.C. Cir. 1998), 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).
102 121 F.3d 729 (D.C. Cir. 1997).
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At the outset, the appeals court’s opinion carefully distinguished 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 decision making.
But the deliberative process privilege, which 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.”103
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.”104 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.”105 The presidential
communications privilege applies to all documents in their entirety,106 including pre- and post-
decisional materials.107
Turning to the chain of command issue, the court held that the presidential communications
privilege covers 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.”108 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.”109
The court, however, was acutely aware of the dangers of a limitless extension of the privilege to
the principles of an open and transparent government. Therefore, it carefully restricted the
privilege’s reach by explicitly confining it to White House staff that has “operational proximity”
to direct presidential decision making. The court held that the privilege did not apply to executive
agency staff:
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
103 Id. at 745-46; see also id. at 737-38 (“[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.’”).
104 Id. at 745, 752; see also id. at 753 (“... these communications nonetheless are ultimately connected with presidential
decisionmaking”).
105 Id. at 754, 757.
106 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. Id. at 737.
107 Id. at 745.
108 Id. at 752.
109 Espy, 121 F.3d at 752.
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decisionmaking process is adequately protected. Not every person who plays a role in the
development of presidential advice, no matter how remote and removed from the President,
can qualify for the privilege. In particular, the privilege should not extend to staff outside the
White House in executive branch agencies. Instead, the privilege should apply only to
communications authored or solicited and received by those members of an immediate White
House advisor’s staff who have broad and significant responsibility for investigation and
formulating the advice to be given the President on the particular matter to which the
communications relate. Only communications at that level are close enough to the President
to be revelatory of his deliberations or to pose a risk to the candor of his advisers. See AAPS,
997 F.2d at 910 (it is “operational proximity” to the President that matters in determining
whether “[t]he President’s confidentiality interests” is implicated) (emphasis omitted).
Of course, the privilege only applies to communications that these advisers and their staff
author or solicit and receive in the course of performing their function of advising the
President on official government matters. This restriction is particularly important in regard
to those officials who exercise substantial independent authority or perform other functions
in addition to advising the President, and thus are subject to FOIA and other open
government statutes. See Armstrong v. Executive Office of the President, 90 F.3d 553, 558
(D.C. Cir. 1996), cert denied—U.S.—-, 117 S.Ct. 1842, 137 L. Ed.2d 1046 (1997). The
presidential communications privilege should never serve as a means of shielding
information regarding governmental operations that do not call ultimately for direct
decisionmaking by the President. If the government seeks to assert the presidential
communications privilege in regard to particular communications of these “dual hat”
presidential advisers, the government bears the burden of proving that the communications
occurred in conjunction with the process of advising the President.110
Because the appeals court limited the presidential communications privilege to “direct
decisionmaking by the President,” it is important to identify the type of decision making the
subpoenaed documents or requested information implicates. Arguably, the opinion restricts the
scope of the privilege to encompass only those functions that form the core of presidential
authority, involving what the court characterized as “quintessential and non-delegable
Presidential power.”111
In the case before it, the court was specifically addressing the President’s Article II appointment
and removal power, which was the focus of the advice he sought from the White House Counsel
in the Espy matter. However, it seems clear from the context of the opinion that the description
was meant to juxtapose non-delegable powers, such as the appointment and removal power, with
other presidential powers that “can be exercised or performed without the President’s direct
involvement, pursuant to a presidential delegation of authority or statutory framework.”112 The
court illustrated the latter category by pointing to the President’s Article II duty “to take care that
the laws are faithfully executed.” The courts have consistently held that this constitutional
instruction is not a source of presidential power, but rather the President’s obligation to ensure
that the will of Congress is carried out by the executive bureaucracy.113
110 Id. (footnote omitted).
111 Id. at 752.
112 Id. at 752-53.
113 See, e.g., 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); Kendall ex rel. Stokes v. United States, 37 U.S. (12 Pet.) 522, 612-13 (1838); Nat’l
Treasury Emps. Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974).
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Although not expressly and unequivocally establishing such a requirement, it appears that the
appeals court may have limited the application of the newly formulated presidential
communications privilege to Article II functions that are “quintessential and non-delegable.”114
This category appears to include 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. Decision making vested by
statute in the President or agency heads, such as rulemaking, environmental policy, consumer
protection, workplace safety, and labor relations, among others, may not necessarily be covered
by the privilege. Of course, the President’s role in supervising and coordinating decision making
in the executive branch remains unimpeded, but his communications in furtherance of such
activities may not be protected by the constitutional privilege.
Such a reading of this critical passage of the court’s opinion conforms with the court’s view of the
source and purpose of the presidential communications privilege and the need to define it
narrowly. Relying on Nixon I, the Espy court identified “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.”115 Again relying on
Nixon I, the court pinpointed the essential purpose of the privilege:
[T]he 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.116
The limiting safeguard appears to be 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.”117
Executive Branch Interpretation Immediately Following Espy
It may be noted that in at least one analogous instance, the White House divulged documents
sought by a congressional committee that argued the more limited reading of Espy. When Espy
was decided, the House Resources Committee was in the midst of an inquiry into President
Clinton’s use of the Antiquities Act of 1906,118 which authorizes the President, in his discretion,
to declare objects of historic or scientific interest on federal land to be national monuments and
reserve parcels that “shall be confined to the smallest area compatible with the proper care and
114 See Espy, 121 F.3d at 752-53. But cf. Loving v. Dep’t of Defense, 550 F.3d 32 (D.C. Cir. 2008) (characterizing the
presidential communications privilege as including documents related to “presidential decisionmaking and
deliberations,” but never mentioning a requirement that the function being exercised be “quintessential and non-
delegable”).
115 Espy, 121 F.3d at 748.
116 Id. at 750.
117 Id. at 752.
118 34 Stat. 225 (1906) (codified as amended at 16 U.S.C. §§431-433 (2006)).
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management of the objects to be protected.”119 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 into the decision-making process that led to the
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 that 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 just to core
Article II powers, but included presidential decision making 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 by the privilege. The committee
disagreed, arguing in reply letters that the Espy privilege did not encompass decision making
based on 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 House Resources Committee’s narrower reading of Espy accommodates Congress’s need for
flexibility in assigning tasks for the executive to accomplish. 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 decision making is deemed so sensitive, important,
or unique that direct presidential authority is appropriate. Where the exercise of such authority
derives solely from a statutory delegation and does not find its basis in one of the so-called “core”
constitutional powers of the President, it is reasonable for Congress to expect to be able to
determine whether and how its legislative intent has been carried out, just as it does with its
assignments to the departments and agencies. A view that any delegation of decision-making
authority directly to the President thereby prevents congressional scrutiny is not only anomalous,
but arguably harmful to interbranch coordination, cooperation, and comity, as it would discourage
such delegations.121 Of course, further judicial development of the principles enunciated in Espy,
and later reinforced in Judicial Watch, may alter this view of the scope of the privilege.
119 16 U.S.C. §431 (2006).
120 See 143 Cong. Rec. E2259-72 (daily ed. Nov. 9, 1997) (statement 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, Oct. 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.
121 The notion that a congressional delegation of administrative decision-making 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).
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Judicial Watch
The District of Columbia Circuit’s 2004 decision in Judicial Watch, Inc. v. Department of
Justice122 appears to lend substantial support to the interpretation of Espy discussed above.
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.123 Some 4,300 documents were withheld
from a FOIA disclosure 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 presidential communications privilege extended to internal
Justice Department documents which had not been “solicited and received” by the President or
the Office of the President.124 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.”125
Guided by the Espy ruling, the majority emphasized that the “solicited and received” requirement
“is necessitated by the principles underlying the presidential communications privilege, and a
recognition of the dangers of expanding it too far.”126 Espy held, the court explained, that the
privilege may be invoked only when documents or communications are authored or solicited and
received by the President himself or by presidential advisers in close proximity to the President
who have significant responsibility for advising him on matters requiring presidential decision
making. In rejecting the government’s argument that the privilege should apply 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.127
122 365 F.3d 1108 (D.C. Cir. 2004). The panel split 2-1, with Judge Rogers writing for the majority and Judge Randolph
dissenting.
123 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.
124 Judicial Watch, 365 F.3d at 1109-12.
125 Id. at 1112.
126 Id. at 1114.
127 Id. at 1117.
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Indeed, the Judicial Watch panel makes it clear that the Espy analysis precludes Cabinet
department heads from being treated as part of the President’s immediate personal staff or as part
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 [Espy], pose a significant risk of expanding to a large swatch of
the executive branch a privilege that is bottomed on a recognition of the unique role of the
President.128
The Judicial Watch majority took great pains to explain why Espy and the case before it differed
from the post-Watergate Nixon cases. According to the court, “[u]ntil [Espy], the privilege had
been tied specifically to direct communications of the President with his immediate White House
advisors.”129 The Espy court, it explained, was confronted for the first time with the question of
whether communications made by the President’s closest advisors while preparing advice for the
President that the President never sees should also be protected 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.130
The facts before the Judicial Watch court tested the Espy principles. While the exercise of the
President’s pardon power was certainly a non-delegable, core presidential function, the officials
involved, the Deputy Attorney General and the Pardon Attorney, were deemed to be too removed
from the President and his senior White House advisors to be protected by the privilege. 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 than a functional
test, since the latter could potentially significantly broaden the scope of the privilege. Where the
presidential communications privilege did not apply, as here, the lesser protections of the
deliberative process privilege would have to suffice.131 The majority found that privilege
insufficient and ordered the disclosure of the 4,300 withheld documents.
Committee on the Judiciary v. Miers
The important 2008 district court opinion in Committee on the Judiciary v. Miers has also played
a role in defining the outer contours of executive privilege. In early 2007, the House Judiciary
Committee and its Subcommittee on Commercial and Administrative Law commenced an inquiry
128 Id. at 1121-22.
129 Judicial Watch, 365 F.3d at 1116.
130 Id. at 1116-17.
131 Id. at 1118-24.
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into the termination and replacement of a number of United States Attorneys. Six hearings and
numerous interviews were conducted by the committees between March and June 2007, focusing
on the actions of present and former Department of Justice (DOJ) officials and employees as well
as related DOJ documents. 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, in his role as custodian of White House documents, and to
former White House Counsel Harriet Miers.
On June 27, 2007, White House Counsel Fred F. Fielding, at the direction of President Bush,
wrote to the chairmen of the House and Senate Judiciary Committees regarding the document
subpoenas issued to Mr. Bolten and Ms. Miers. Fielding notified the committees that the
President was asserting executive privilege and had instructed the subpoena recipients not to
produce any documents. Additionally, the Fielding letter noted that the testimony sought from
Ms. Miers was also subject to a “valid claim of Executive Privilege,” and would be asserted if the
matter could not be resolved before the scheduled appearance date.132
Accompanying the Fielding letter was a legal memorandum prepared by Acting Attorney General
Paul D. Clement, for the President, detailing the legal basis for a claim of executive privilege.133
The memo identified three categories of documents being sought by the committee: (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.134 Internal White House
communications included discussions of “the wisdom” of removal and replacement proposals,
which U.S. Attorneys should be removed, and possible responses to congressional and media
inquiries. The memo claimed these discussions were the “types of internal deliberations among
White House officials [that] fall squarely within the scope of executive privilege” since their non-
disclosure “promote[s] sound decisionmaking by ensuring that senior Government officials and
their advisors may speak frankly and candidly during the decisionmaking process.”135
Furthermore, the memo argued that the President’s protected confidentiality interests “are
particularly” strong in this instance because the presidential power to appoint and remove officers
of the United States is a “quintessential and nondelegable Presidential power.”136 As a
consequence, an inquiring committee would have to meet the standard established by the Senate
Select Committee decision, showing that the documents and information are “demonstrably
critical to the responsible fulfillment of the Committee’s function,” to overcome the privilege and
achieve disclosure.137
On June 29, 2007, Chairman Conyers and Senate Judiciary Committee Chairman Patrick Leahy
jointly responded to the Fielding letter and Clement memo. Characterizing the White House
132 Letter dated June 28, 2007 to Chairman Conyers and Leahy from Fred F. Fielding, Counsel to the President,
available at http://www.judiciary.senate.gov/resources/documents/upload/110thCongress-2007Documents.pdf.
133 Memorandum, dated June 27, 2007, for the President from Paul D. Clement, Solicitor General and Acting Attorney
General, available at http://www.judiciary.senate.gov/resources/documents/upload/110thCongress-2007Documents.pdf
[hereinafter Clement Memo].
134 Id. at 1.
135 Id. at 2 (citing Nixon I, 418 U.S. at 708).
136 Id. (citing Espy, 121 F.3d at 752).
137 Id.
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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. The log was to include the
following information 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 answer questions or produce documents. The next day Ms. Miers’
counsel announced that she would not appear at all. Also on July 10, the DOJ Office of Legal
Counsel (OLC) issued an opinion stating that “Ms. Miers is [absolutely] immune from
compulsion to testify before the Committee on this matter and therefore is not required to appear
to testify about the subject.”138 Citing previous OLC opinions, the opinion asserted 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.”139 Consequently, “[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.140 The fact
that Ms. Miers was a former counsel to the President would not alter the analysis since, in OLC’s
view, “a presidential advisor’s immunity is derivative of the President’s.” Neither Ms. Miers nor
Mr. Bolten complied with the subpoenas by the return dates.
On July 12 and July 19 the House Subcommittee met and Chairman Sánchez issued a ruling
rejecting both Ms. Miers’ and Mr. Bolton’s privilege claims. 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 Ms. Miers and Mr. Bolten be approved. Thereafter, the White
House announced that it would order the U.S. Attorney for the District of Columbia not to present
the contempt of Congress citation for grand jury consideration.141
The Judiciary Committee filed its report formally reporting a contempt violation to the House in
November 2007.142 After further attempts at accommodation failed, the matter was brought to the
138 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, available at http://www.justice.gov/olc/2007/miers-immunity-Opinion071007.pdf [hereinafter OLC
Immunity Opinion].
139 Id. at 1.
140 Id. at 2.
141 See 2 U.S.C. §§192, 194 (stating that the President of the Senate or Speaker of the House shall certify the citation to
the U.S. Attorney, “whose duty it shall be to bring the matter before the grand jury for its action”). For detailed
information about the criminal contempt statutes, see CRS Report RL34097, Congress’s Contempt Power and the
Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey and Alissa M.
Dolan.
142 H.Rept. 110-423 110th Cong., 1st Sess. (2007).
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floor of the House on February 14, 2008. The House voted 223 to 32143 in favor of two
resolutions.144 H.Res. 979 directed the Speaker to certify the Judiciary Committee report,
detailing Ms. Miers’ refusal to appear, testify, or produce documents for the committee and Mr.
Bolten’s refusal to produce documents, in violation of the subpoenas, to the U.S. Attorney for the
District of Columbia for presentation to a grand jury pursuant to 2 U.S.C. Sections 192 and
194.145 H.Res. 980 was passed in apparent anticipation that the U.S. Attorney would not present
the criminal contempt citation to the grand jury. The resolution authorized the chairman of the
Judiciary Committee to initiate civil judicial proceedings in federal court to seek a declaratory
judgment affirming the duty of any individual to comply with any subpoena that is the subject of
H.Res. 979 and to issue appropriate injunctions to achieve compliance. The resolution also
authorized the House General Counsel to represent the committee in any such litigation.
On February 28, 2008, the Speaker certified the committee’s report to the U.S. Attorney. The next
day, however, Attorney General Mukasey advised the Speaker that “the Department will not bring
the congressional contempt citations before a grand jury or take any other action to prosecute Mr.
Bolten or Ms. Miers.”146
On March 10, 2008, the House General Counsel filed a civil action for declaratory judgment and
injunctive relief against Ms. Miers and Mr. Bolten.147 The suit sought an order directing Ms.
Miers to appear before the committee, respond to questions, and only invoke executive privilege
if appropriate. Additionally, the committee requested that Ms. Miers and Mr. Bolten provide
detailed privilege logs for the documents claimed to be privileged and produce all other
documents subject to the subpoenas.148 Shortly after filing the case, the House General Counsel
filed a Motion for Partial Summary Judgment seeking a declaration that (1) Ms. Miers’ failure to
appear at all in response to the committee’s subpoena was without legal justification; (2) she must
appear before the committee and can assert privilege claims in response to questions, as
appropriate, but must testify about subjects not covered by privilege; (3) the failure of both Ms.
Miers and Mr. Bolten to supply privilege logs with respect to withheld documents is legally
unjustified; and (4) both be ordered to provide detailed privilege logs with respect to documents
claimed to be privileged and to produce all relevant non-privileged documents.149 In opposition,
the executive argued that the suit should be dismissed because the committee lacked standing and
a cause of action.150 Furthermore, it argued that the court should not involve itself in disputes
between the political branches that have traditionally been resolved through direct negotiation.151
143 H.Res. 982, 110th Cong. (Feb. 14, 2008). The vote total is low because 173 Members did not vote. According to the
Washington Post, “Republicans walked off the floor and refused to cast a final vote.” Paul Kane, West Wing Aides
Cited for Contempt, WASH. POST, Feb. 15, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/
2008/02/14/AR2008021402415.html.
144 The House only voted on one resolution, H.Res. 982. However, the text of this resolution stated, “Resolved, That
House Resolution 979 and House Resolution 980 are hereby adopted.” Therefore, the House only recorded one vote,
but voted in favor of passing two resolutions.
145 H.Res. 979, 110th Cong. (Feb. 14, 2008).
146 Letter from Attorney General Michael Mukasey to Speaker of the House Nancy Pelosi, Feb. 29, 2008 (on file with
the authors).
147 Complaint for Declaratory and Injunctive Relief, Comm. on the Judiciary, U.S. House of Representative v. Miers,
558 F. Supp. 2d 53 (D.D.C. 2008) (No. 08-0409).
148 Id. at 10-11.
149 Plaintiff’s Motion for Partial Summary Judgment at 1-2, Comm. on the Judiciary, U.S. House of Representative v.
Miers, 558 F. Supp. 2d 53 (D.D.C. 2008) (No. 08-0409).
150 Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and in Opposition to
(continued...)
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On July 31, 2008, the district court essentially granted the committee’s motion for partial
summary judgment in its entirety.152 In its lengthy opinion, the court rejected the executive’s
justiciability claims, finding both standing and an implied cause of action in the Constitution’s
institutional commitment to Congress in Article I of “the power of inquiry.” It noted that the
Supreme Court has consistently recognized that this power carries with it an enforcement
mechanism, which is “an essential and appropriate auxiliary to the legislative function.”153
Furthermore, the court stated that “issuance of a subpoena pursuant to an authorized investigation
is ... an indispensable ingredient of law making.”154 In rejecting the suggestion that the court
exercise its equitable discretion not to adjudicate an inter-branch political dispute, the court
observed that many courts since the initial Watergate rulings deemed it appropriate to attempt to
resolve subpoena disputes. These disputes, both civil and criminal, involved privilege claims in
circumstances where it appeared only judicial intervention could “prevent a stalemate ... that
could result in a paralysis of government operations.”155 The court noted that both parties
conceded that they were at an impasse and observed:
Although the identity of the litigants in this case necessitates that the Court proceed with
caution, that is not a convincing reason to decline to decide a case that presents important
legal questions. Rather than running roughshod over separation of powers principles, the
Court believes that entertaining this case will reinforce them. Two parties cannot negotiate in
good faith when one side asserts legal privileges but insists that they cannot be tested in court
in the traditional manner. That is true whether the negotiating parties are private firms or the
political branches of the federal government. Accordingly, the Court will deny the
Executive’s motion to dismiss.156
Turning to the executive’s claim that present and past senior advisers to the President are
absolutely immune from compelled congressional process, the court rejected the executive’s
position:
(...continued)
Plaintiff’s Motion for Partial Summary Judgment on Counts I and II at 5-8, U.S. House of Representative v. Miers, 558
F. Supp. 2d 53 (D.D.C. 2008) (No. 08-0409).
151 Id. at 8-9.
152 The court declined to order Ms. Miers and Mr. Bolten to provide detailed privilege logs for documents claimed to be
covered by executive privilege, holding that while such logs “have great practical utility,” there is no applicable statute
or controlling case law that would provide “a ready ground by which to force the Executive to make such a production
strictly in response to a congressional subpoena.” Miers, 558 F. Supp. 2d at 107 (emphasis in original). The court
warned, however, that both the court “and the parties will need some way to evaluate privilege assertions going forward
in the context of this litigation.” Id. The court particularly noted that if it has to decide the merits of a privilege claim,
the government “will need a better description of the documents than the one found in Mr. Clement’s letter of June 27,
2007.” See Clement Memo, supra notes 127-37 and accompanying text. With this admonition, the court ordered that
the defendants “shall provide to the plaintiff a specific description of any documents withheld from production on the
basis of executive privilege consistent with the terms of the Memorandum Opinion issued on this date.” Order at 1-2,
Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008).
153 Miers, 558 F. Supp. 2d at 75 (citing McGrain, 273 U.S. at 174).
154 Id. (citing Eastland, 421 U.S. at 505).
155 Id. at 99 (citing Response to Congressional Requests for Information Regarding Decisions Made Under the
Independent Counsel Act, 10 Op. O.L.C. 68 (1986) [hereinafter Cooper Memo]).
156 Id. For an in-depth discussion of the implications and importance of the court’s justiciability rulings, see CRS
Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History,
Practice, and Procedure, by Todd Garvey and Alissa M. Dolan.
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The Executive cannot identify a single judicial opinion that recognizes absolute immunity for
senior presidential advisors in this or any other context. That simple yet critical fact bears
repeating: the asserted absolute immunity claim here is entirely unsupported by existing case
law. In fact, there is Supreme Court authority that is all but conclusive on this question and
that powerfully suggests that such advisors do not enjoy absolute immunity. The Court
therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.157
At the outset, the court noted that the 1950 Supreme Court ruling in United States v. Bryan158
established that if a congressional subpoena requirement is ignored, “the great power of
testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would
be a nullity.”159 In attempting to explain why it should not have to comply here, the executive
argued that since the President is absolutely immune to compelled congressional testimony, close
advisers to the President must be regarded as his “alter ego” and, therefore, be entitled to the
same absolute immunity. The court responded that the same line of argument was rejected by the
Supreme Court in Harlow v. Fitzgerald,160 a suit for damages against senior White House aides
arising out of the defendants’ official actions. The aides claimed they were “entitled to a blanket
protection of absolute immunity as an incident of their offices as Presidential aides.”161
Recognizing that absolute immunity had been extended to legislators, judges, prosecutors, and the
President himself, the Supreme Court rejected extending such immunity further, emphasizing that
“[f]or executive officials in general, however, our cases make plain that qualified immunity
represents the norm.”162 The Court rejected the argument that it had accorded derivative immunity
to legislative aides in Speech or Debate cases as “sweep[ing] too far,” noting that even Cabinet
members “are not entitled to absolute immunity.”163 The Harlow Court did concede that a
presidential aide could have absolute immunity if the responsibilities of his office included a
sensitive function, such as foreign policy or national security, and he was discharging the
protected functions when performing the act for which liability is asserted.164 The Miers district
court concluded that in this matter, since there was no involvement of national security or foreign
policy concerns, neither Ms. Miers’ nor Mr. Bolten’s close proximity to the President was
sufficient under Harlow to provide either absolute or qualified immunity.165
In response to the executive’s claim that without absolute immunity there would be a “chilling
effect” on the candid and frank advice advisers would provide a chief executive, the court stated:
The prospect of being hauled in front of Congress – daunting as it may be – would not
necessarily trigger the chilling effect that the Executive predicts. Senior executive officials
often testify before Congress as a normal part of their jobs, and forced testimony before
Congress does not implicate the same concern regarding personal financial exposure as does
a damages suit. Significantly, the Committee concedes that an executive branch official may
assert executive privilege on a question-by-question basis as appropriate. That should serve
as an effective check against public disclosure of truly privileged communications, thereby
157 Miers, 558 F. Supp. 2d at 99.
158 339 U.S. 323 (1950).
159 Id. at 331.
160 457 U.S. 800 (1982).
161 Id. at 808.
162 Id. at 807.
163 Id. at 810.
164 Id. at 812-13.
165 Miers, 558 F. Supp. 2d at 100-01, 104-05.
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mitigating any adverse impact on the quality of advice that the President receives.... In any
event, the historical record produced by the Committee reveals that senior advisors to the
President have often testified before Congress subject to various subpoenas dating back to
1973. Thus, it would hardly be unprecedented for Ms. Miers to appear before Congress to
testify and assert executive privilege where appropriate. Still, it is noteworthy that in an
environment where there is no judicial support whatsoever for the Executive’s claim of
absolute immunity, the historical record also does not reflect the wholesale compulsion by
Congress of testimony from senior presidential advisors that the Executive fears.166
Next, the district court rejected the claim that Nixon I established that a President’s immunity is
qualified, and not absolute, only when judicial resolution of a criminal justice matter was at
stake.167 The executive argued that this case involved only a “peripheral” exercise of Congress’s
power, not a core function of another branch. The court responded:
Congress’s power of inquiry is as broad as its power to legislate and lies at the very heart of
Congress’s constitutional role. Indeed, the former is necessary to the proper exercise of the
latter: according to the Supreme Court, the ability to compel testimony is “necessary to the
effective functioning of courts and legislatures.” Bryan 339 U.S. at 331 (emphasis added).
Thus, Congress’s use of (and need for vindication of) its subpoena power in this case is not
less legitimate or important than was the grand jury’s in United States v. Nixon. Both involve
core functions of a co-equal branch of the federal government, and for the reasons identified
in Nixon, the President may only be entitled to a presumptive, rather than absolute, privilege
here. And it is certainly the case that if the President is entitled only to a presumptive
privilege, his close advisors cannot hold the superior card of absolute immunity... [A] claim
of absolute immunity from compulsory process cannot be erected by the Executive as a
surrogate for the claim of absolute privilege already firmly rejected by the courts.
Presidential autonomy, such as it is, cannot mean that the Executive’s actions are totally
insulated from scrutiny by Congress. That would eviscerate the Congress’s oversight
functions.168
The court recognized that claiming that close presidential advisors were entitled to absolute
privilege made the President the judge of the parameters of his own privilege. The court
concluded that such a power “would impermissibly transform the presumptive privilege into an
absolute one, yet that is what the Executive seeks through its assertion of Ms. Miers absolute
immunity from compulsory process. That proposition is untenable and cannot be justified by
appeals to Presidential autonomy.”169
Finally, the district court rejected the executive’s fall-back position: that even if Ms. Miers is not
entitled to absolute immunity, she should be accorded qualified immunity. The court dismissed
the argument, relying on the analysis established by Harlow:
[T]his inquiry does not involve sensitive topics of national security or foreign affairs.
Congress, moreover, is acting pursuant to a legitimate use of its investigative authority.
Notwithstanding its best efforts, the Committee has been unable to discover the underlying
causes of the forced terminations of the U.S. Attorneys. The Committee has legitimate
reasons to believe that Ms. Miers’s testimony can remedy that deficiency. There is no
evidence that the Committee is merely seeing to harass Ms. Miers by calling her to testify.
166 Id. at 102 (emphasis in original) (internal citations omitted).
167 Nixon I, 418 U.S. at 707-08.
168 Miers, 558 F. Supp. 2d at 102-03.
169 Id. at 103-04.
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Importantly, moreover, Ms. Miers remains able to assert privilege in response to any specific
question or subject matter. For its part, the Executive has not offered any independent
reasons that Ms. Miers should be relieved from compelled congressional testimony beyond
its blanket assertion of absolute immunity. The Executive’s showing, then, does not support
either absolute or qualified immunity in this case.170
The Administration appealed the district court decision and asked the U.S. Court of Appeals for
the District of Columbia Circuit (D.C. Circuit) to stay the district court order pending an
expedited final decision by that court. On September 16, 2008, the D.C. Circuit granted the stay,
but denied the Administration’s request for an expedited schedule.171 The appeals court had
concluded that “even if expedited, this controversy will not be fully and finally resolved by the
Judicial Branch … before the 110th Congress ends on January 3, 2009. At that time, the 110th
House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will
expire.”172 Accordingly, because the committee’s subpoenas were likely to expire before the
dispute could be resolved, the court saw no reason to expedite the case.173
On January 13, 2009—with the Miers case still on appeal before the D.C. Circuit, the 110th
Congress having reached its conclusion, and all presidential records set to transfer into the
custody of the Archivist of the United States174 at the end of President Bush’s second term on
January 20th—the district court issued a second order to preserve the availability of documents
covered by the committee subpoenas.175 The order required the Administration to make copies of
all materials responsive to the subpoenas for storage at the White House until the conclusion of
the litigation.
In March of 2009, after the arrival of a newly elected Congress and presidential Administration,
the parties reached a settlement in which some, but not all, of the requested documents would be
provided to the committee. In addition, Ms. Miers would be permitted to testify, under oath, in a
closed, but transcribed, hearing.176 Accordingly, the D.C. Circuit dismissed Miers on October 14,
2009, pursuant to a motion for voluntary dismissal.177 Thus, the Miers litigation ended more than
a year and a half after the committee first filed its suit to enforce the subpoenas. Ultimately,
however, the committee was able to gain access to much of the information it had been
seeking.178
Although the district court opinion in Miers is perhaps best characterized as a vindication of
congressional oversight prerogatives, or at least a clear limitation on the scope of executive
170 Id. at 105.
171 Committee on the Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008) [hereinafter Miers II].
172 Id. at 911. The authority underlying a House subpoena or contempt citation has traditionally been considered to
expire at the termination of the Congress in which it was authorized.
173 The concurring opinion appeared to disagree with the majority on this point, arguing that “the successor Congress
can assert the prior Committee’s investigatory interest…” Committee on the Judiciary v. Miers, 542 F.3d 909, 912
(D.C. Cir. 2008) (Tatel, Judge, concurring) (citing United States v. AT&T Co., 567 F.2d 121 (D.C. Cir. 1977)).
174 Presidential Records Act, 44 U.S.C. §§2201-2207.
175 Committee on the Judiciary v. Miers, 2009 U.S. Dist. LEXIS 2326 (D.D.C. 2009).
176 David Johnston, Top Bush Aides to Testify in Attorneys’ Firings, N.Y. TIMES, March. 4, 2009. The settlement also
permitted Karl Rove to testify under the same conditions.
177 Committee on the Judiciary v. Miers, 2009 U.S. App. LEXIS 29374 (D.C. Cir. 2009).
178 The testimony and documents are available at http://judiciary.house.gov/issues/issues_WHInterviews.html.:
http://judiciary.house.gov/issues/issues_WHInterviews.html.
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privilege in the face of a congressional investigation, the ultimate impact of the case is unclear.
The reasoning adopted by the court may have significant influence in that it so clearly repudiated
the executive’s claim of absolute immunity for presidential advisors, while reaffirming
Congress’s essential role in conducting oversight and enforcing its own subpoenas. However, the
impact of the ruling may also be limited by the fact that, as a district court decision, it carries only
the precedential weight that its reasoning may bear. Moreover, the case did not provide any
discussion of the merits of Miers’ specific claims of executive privilege, but rather held that
although not enjoying absolute immunity from congressionally compelled testimony, Ms. Miers
was still free to assert executive privilege “in response to any specific questions posed by the
Committee.”179 Thus, Ms. Miers could still assert the protections of executive privilege during her
testimony depending on the substance of any individual question posed by a member of the
committee. Finally, the court also suggested, without further explanation, that Congress may lack
authority to compel testimony where such testimony related to national security, foreign affairs,
or another “particularly sensitive function” of the executive branch.180
Loving v. Department of Defense
In Loving v. Department of Defense, the D.C. Circuit reaffirmed the distinction between the
deliberative process privilege and the presidential communications privilege that had been
carefully explained in Espy and Judicial Watch.181 The Loving court held that the presidential
communications privilege applies only where documents or communications “directly involve the
President” or were “solicited and received” by White House advisors.182 The case was
precipitated by a FOIA request filed by Army Private Dwight Loving seeking disclosure of
various documents, including a Department of Defense memorandum containing
recommendations to the President about Loving’s murder conviction by a military tribunal and
subsequent death sentence. After noting the two distinct versions of executive privilege,183 the
appeals court determined that the documents in question were indeed protected from disclosure as
they fell “squarely within the presidential communications privilege because they ‘directly
involve’ the President.”184 The court also clarified that communications that “directly involve” the
President need not actually be “solicited and received” by him. The mere fact that the documents
were viewed by the President was sufficient to bring them within the privilege.185 It is important
to note that in its relatively brief discussion of the presidential communications privilege, the
Loving court did not reference the discussion of “non-delegable presidential duties” that was
included in Espy and Judicial Watch.
179 Miers, 558 F. Supp. 2d. at 105.
180 Id. at 101, 106.
181 550 F.3d 32 (D.C. Cir. 2008).
182 Id. at 37.
183 Id. (“[T]wo executive privileges [] are relevant here: the presidential communications privilege and the deliberative
process privilege.”).
184 Id. at 39.
185 Id. at 40 (“Nothing in Judicial Watch disturbs the established principle that communications ‘directly involving’ the
President …are entitled to the privilege, regardless of whether the President solicited them.”). In addition, the Loving
opinion reaffirmed that the presidential communications privilege “is more difficult to surmount’ than the deliberative
process privilege, and that the presidential communications privilege protects a documents in its entirety, whereas
under the deliberative process privilege the government must “segregate and disclose non-privileged factual
information within a document.” Id. at 38-40.
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President Obama’s Assertion of Executive Privilege
On June 20, 2012, Deputy Attorney General James Cole alerted the House Committee on
Oversight and Government Reform that President Obama was asserting executive privilege over
documents subpoenaed by the committee during its ongoing investigation of Operation Fast and
Furious. This assertion appears to be the first time President Obama has formally invoked
executive privilege.
Operation Fast and Furious Investigation
In January 2011, the Senate Judiciary Committee began investigating the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) and DOJ regarding Operation Fast and Furious,186 an
ATF operation based in the Phoenix, AZ, field office. ATF whistleblowers alleged that suspected
straw purchasers187 were allowed to amass large quantities of firearms as part of long-term gun
trafficking investigations.188 As a consequence, some of these firearms were allegedly
“walked,”189 or trafficked, to gunrunners and other criminals, and some were smuggled into
Mexico.190 In December 2010, two of these firearms were reportedly found at the scene of a
shootout, near the U.S.-Mexico border, where U.S. Border Patrol Agent Brian Terry was shot to
death.191 Following public reports of the operation and Agent Terry’s death, Attorney General Eric
Holder instructed the DOJ Office of Inspector General to review ATF’s gun trafficking
investigations.192
On February 4, 2011, Assistant Attorney General Ronald Weich sent a letter to Senator Grassley,
ranking Member of the Senate Judiciary Committee, denying that the ATF had sanctioned or
knew of the sale of weapons to straw purchasers who then transported them into Mexico.193 In
March 2011, the House Committee on Oversight and Government Reform began their own
investigation of Operation Fast and Furious. Representative Darrell Issa, chairman of the
Oversight Committee, requested documents and information about the operation from then-
Acting ATF Director Kenneth E. Melson. The Department of Justice responded to the request,
but, according to the committee, “did not provide any documents or information to the Committee
by the March 30, 2011 deadline.”194 The following day, the committee issued a subpoena to DOJ
186 For a detailed discussion of Operation Fast and Furious, see CRS Report RL32842, Gun Control Legislation, by
William J. Krouse.
187 A “straw purchase” occurs when an individual poses as the actual transferee, but he is actually acquiring the firearm
for another person. In effect, he serves as an illegal middleman.
188 James V. Grimaldi and Sari Horwitz, ATF Probe Strategy is Questioned, WASH. POST, Feb. 2, 2011, at A4.
189 “Gun walking” refers to guns that were trafficked to gunrunners and other criminals before ATF moved to arrest the
suspects and seize all of their contraband firearms. See id.
190 Grimaldi and Horwitz, supra note 188, at A4.
191 John Solomon, David Heath, and Gordon Witkin, “ATF Let Hundred of U.S. Weapons Fall into Hands of Suspected
Mexican Gun Runners: Whistleblower Says Agents Strongly Objected to Risky Strategy,” Center for Public Integrity,
available at http://www.iwatchnews.org/2011/03/03/2095/atf-let-hundreds-us-weapons-fall-hands-suspected-mexican-
gunrunners.
192 Pete Yost, Justice IG to Look into Anti-Gun Efforts on Border, ASSOCIATED PRESS ONLINE, March 4, 2011.
193 Letter from Assistant Attorney General Ronald Weich to Ranking Member Charles Grassley, February 4, 2011,
available at http://oversight.house.gov/wp-content/uploads/2012/06/Feb-4-Dec-2-letters.pdf.
194 Report of the Committee on Oversight and Government Reform U.S. House of Representatives, “Report
Recommending that the House of Representatives Find Eric H. Holder, Jr., Attorney General, U.S. Department of
(continued...)
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and ATF.195 Over the next year, the Oversight and Government Reform Committee held several
hearings regarding Operation Fast and Furious,196 and Attorney General Holder testified before
that committee as well as the House and Senate Judiciary and Appropriations Committees. On
October 12, 2011, the Oversight and Government Reform Committee issued a second subpoena
to Attorney General Holder, after the DOJ informed the committee that it was done producing
documents in response to the first subpoena. This subpoena requested all departmental
communications and documents “referring or related to Operation Fast and Furious.” At a
November 8, 2011, Senate Judiciary Committee hearing, Attorney General Holder conceded that
the February 4, 2011, letter from DOJ to Congress contained “inaccurate” information about the
depth of knowledge DOJ officials had regarding ATF’s “gun walking” methods.197 The next
month, the DOJ formally withdrew the February 4 letter and acknowledged that Operation Fast
and Furious was “fundamentally flawed.”198 The letter was accompanied by nearly 1,400 pages of
documents and communications that addressed how inaccurate information had been included in
the February 4 letter.199
This disclosure deviated from the DOJ’s general position that requests like this committee’s,
“seeking information about the Executive Branch’s deliberations ... implicate significant
confidentiality interests grounded in the separation of powers under the U.S. Constitution.”200
Throughout the committee’s investigation into the scope of DOJ’s knowledge of Operation Fast
and Furious, each party has had different opinions about the nature and extent of DOJ’s
cooperation in producing subpoenaed documents and communications. The DOJ maintained that
it made “extraordinary accommodations”201 in responding to requests about the drafting of the
February 4 letter. Furthermore, it stated:
The Department has substantially complied with the outstanding subpoenas. The documents
responsive to the remaining subpoena items pertain to sensitive law enforcement activities,
including ongoing criminal investigations and prosecutions, or were generated by
Department officials in the course of responding to congressional investigations or media
inquiries about this matter that are generally not appropriate for disclosure.202
(...continued)
Justice in Contempt of Congress for Refusal to Comply With a Subpoena Duly Issued by the Committee on Oversight
and Government Reform, June 20, 2012, p. 4 [hereinafter Contempt Committee Report].
195 Press Release, “Chairman Issa Subpoenas ATF for ‘Project Gunrunner’ Documents,” April 1, 2011.
196 The Committee hearings included: June 13, 2011: “Obstruction of Justice: Does the Justice Department Have to
Respond to a Lawfully Issued and Valid Congressional Subpoena?”; June 15, 2011: “Operation Fast and Furious:
Reckless Decisions, Tragic Outcomes”; July 26, 2011: “Operation Fast and Furious: The Other Side of the Border”;
February 2, 2012: “Fast and Furious: Management Failures at the Department of Justice” (Attorney General Holder
testified); June 20, 2012: “Full Committee Business Meeting” (voting on citation to hold Attorney General Holder in
contempt).
197 Jerry Jarkon, Holder Amends Remarks on Gun Sting: Attorney General Heard of ‘Fast and Furious’ Earlier Than
He First Said, WASH. POST, Nov. 9, 2011, at A2.
198 Letter from Deputy Attorney General James Cole to Chairman Darrell Issa and Ranking Member Charles Grassley,
December 2, 2011, available at http://oversight.house.gov/wp-content/uploads/2012/06/Feb-4-Dec-2-letters.pdf.
199 Id.
200 Id.
201 Letter from Deputy Attorney General James Cole to Chairman Darrell Issa, June 20, 2012, available at
http://i2.cdn.turner.com/cnn/2012/images/06/20/letter_to_issa.pdf [hereinafter June 20 Letter]
202 Id.
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However, the committee maintains that despite its flexibility and it being “unfailingly patient,”203
“the Department has refused to produce certain documents”204 and “has fought this committee’s
investigation every step of the way.”205 During a committee hearing, Chairman Issa remarked that
the Attorney General specifically has “refused to cooperate, offering to provide subpoenaed
documents only if the committee agrees in advance to close the investigation. No investigator
would ever agree to that.”206 In its contempt committee report, it stated that the DOJ’s refusal to
cooperate with congressional investigators was “inexcusable and cannot stand.”207
The committee’s continued dissatisfaction with the DOJ’s refusal to comply fully with the
subpoenas led it to schedule a vote to hold Attorney General Holder in contempt of Congress.
While the Attorney General and Chairman Issa met the night before the scheduled vote, they were
unable to reach an acceptable accommodation with regard to document disclosure. On the
morning of the vote, President Obama formally invoked executive privilege “over the relevant
post-February 4, 2011, documents.”208 In defending this assertion, the DOJ noted that:
the compelled production to Congress of these internal Executive Branch documents
generated in the course of the deliberative process concerning the Department’s response to
congressional oversight and related media inquiries would have significant, damaging
consequences ... it would inhibit the candor of such Executive Branch deliberations in the
future and significantly impair the Executive Branch’s ability to respond independently and
effectively to congressional oversight. Such compelled disclosure would be inconsistent with
the separation of powers established in the Constitution and would potentially create an
imbalance in the relationship between these co-equal branches of the Government.209
In its contempt citation, the Oversight and Government Reform Committee rejected the
President’s assertion of executive privilege, calling it “transparently invalid” due to the timing
and blanket application of the privilege to all withheld documents.210 The committee voted 23 to
17 to hold Attorney General Holder in contempt of Congress.211 On June 28, 2012, the full House
voted to hold him in contempt of Congress, by a vote of 255 to 67.212
203 Contempt Committee Report, p. 22.
204 Id. at 4.
205 Congressional Quarterly Hearing Transcript: “House Oversight and Government Reform Committee Holds Markup
on a Contempt of Congress Citation for U.S. Attorney General Holder,” available at http://www.cq.com/doc/
congressionaltranscripts-4110610 [hereinafter Hearing Transcript].
206 Id.
207 Contempt Committee Report, p. i.
208 June 20 Letter.
209 Id.
210 Contempt Committee Report, p. 42 (as stated in Representative Gowdy’s amendment, approved by a 23 to 17 vote).
211 Ed O’Keefe and Sari Horwitz, Fast and Furious: House Committee Votes 23-17 to Hold Attorney General Eric
Holder in Contempt of Congress, WASH. POST, June 20, 2011, available at http://www.washingtonpost.com/blogs/
2chambers/post/live-fast-and-furious-hearing-to-discuss-contempt-of-congress-charge-against-eric-holder/2012/06/20/
gJQAzQKHqV_blog.html.
212 See H.Res. 711 (roll call vote available at http://cq.com/doc/floorvote-236138000). For detailed information on the
contempt process, see CRS Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional
Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey and Alissa M. Dolan.
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Concluding Observations
As indicated in the above discussion, recent appellate court rulings cast considerable doubt on the
broad claims of privilege posited by the executive branch in the past. Taken together, Espy and
Judicial Watch arguably have effected important qualifications and restraints on the nature, scope,
and reach of the presidential communications privilege. As established by those cases, and until
reviewed by the Supreme Court, the following elements should be considered in determining
when the privilege can be invoked properly:
1. The communication must be authored or “solicited and received” by a close White House
advisor or the President. The judicial test requires that an advisor be in “operational
proximity” to the President. This effectively means that the scope of the presidential
communications privilege can extend only to the administrative boundaries of the
Executive Office of the President and the White House. It appears not to apply to
communications or documents wholly produced within an executive department or
agency.
2. The presidential communications privilege may be limited to communications relating 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 presidential decision-making powers include the Commander-in-Chief power, the
sole authority to receive ambassadors and other public ministers, and the power to
negotiate treaties. However, neither case explicitly stated that the presidential
communications privilege could only apply to communications and documents relating to
“quintessential and non-delegable presidential power[s].”
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 cannot be obtained from other sources. The Espy court found an adequate showing of
need by the Independent Counsel that overcame the privilege. In Judicial Watch, the
court found the presidential communications privilege did not apply, and remanded to the
district court to determine if the deliberative process privilege would apply to specific
documents.
Definitively applying the teachings of Espy and Judicial Watch to current information access
disputes between Congress and the executive may be premature because these cases were decided
in the context of judicial and FOIA requests for information from the executive branch. In the
congressional-executive conflict context, it is clear that the Miers court unequivocally rejected the
claim of absolute witness immunity and adopted the committee’s argument that the Supreme
Court’s ruling in Nixon I allows only a qualified constitutional privilege that may be overcome by
a proper showing of need. Furthermore, the court recognized that subsequent Supreme Court and
appellate court rulings have reiterated the qualified nature of the privilege.213 However, outside of
the district court opinion in Miers, there is no other post-Watergate case law addressing executive
privilege in the congressional-executive dispute context. Indeed, the Espy court specifically noted
that its narrow holding was limited to the confines of judicial requests for information:
213 Miers, 558 F. Supp. 2d at 103.
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Finally, we underscore our opinion should not be read as in any way affecting the scope of
the privilege in the congressional-executive context, the arena where conflict over the
privilege of confidentiality arises most frequently. The President’s ability to withhold
information from Congress implicates different constitutional considerations than the
President’s ability to withhold evidence in judicial proceedings. Our determination of how
far down into the executive branch the presidential communications privilege goes is limited
to the context before us, namely where information generated by close presidential advisers
is sought for use in a judicial proceedings, and we take no position on how the institutional
needs of Congress and the President should be balanced.214
In the continuing absence of a post-Nixon Supreme Court decision and since Miers never
proceeded to a decision on the merits in the appeals court, there is continuing uncertainty as to
how executive privilege claims should be analyzed when asserted in response to congressional
requests for information.
214 Espy, 121 F.3d at 753.
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Appendix. Presidential Claims of Executive
Privilege From the Kennedy Administration
Through the Obama Administration
The following is a brief summary of assertions of presidential claims of executive privilege from
the Kennedy Administration through the Obama 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 in response to a request 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 his military
adviser, General Maxwell Taylor, to refuse to testify before a congressional committee examining
the Bay of Pigs affair. See Rozell, supra note 1, at 40-41.
2. Johnson
Although he announced that he would follow the Kennedy policy of personal assertion of
executive privilege, President Johnson did not follow the practice. Rozell, supra note 1, at 41-42,
catalogues three instances in which executive officials refused to comply with congressional
committee requests for information or testimony that involved presidential actions. These
executive officials did not claim that the President directed them to assert the privilege.
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, at the President’s
direction, Secretary of State Rogers asserted privilege and withheld information from Congress
about 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 International Telephone and
Telegraph (ITT) 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: one subpoena from the Senate Select Committee; one grand jury subpoena for the same
tapes issued by Special Prosecutor Archibald Cox; and one jury trial subpoena for 64 additional
tapes issued by Special Prosecutor Leon Jaworski. Rozell, supra note 1, at 57-62.
4. Ford and Carter
President Ford directed Secretary of State Henry Kissinger to withhold documents during a
congressional committee investigation of State Department recommendations to the National
Security Council to conduct covert activities in 1975. President Carter directed Energy Secretary
Charles Duncan to claim executive privilege when a committee demanded documents relating to
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the development and implementation of a policy to impose a petroleum import fee. Rozell, supra
note 1, at 77-82, 87-91.
5. Reagan
President Reagan directed the assertion of executive privilege before congressional committees
three times: by Secretary of the Interior James Watt with respect to an investigation of Canadian
oil leases (1981-82); by EPA Administrator Anne Gorsuch 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 wrote when he was Assistant Attorney
General for the DOJ Office of Legal Counsel (1986). Rozell, supra note 1, at 98-105.
6. Bush, George H. W.
President Bush asserted privilege only once, in 1991, when he ordered Defense Secretary Dick
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 note
1, at 108-19.
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 completely clear when a
subordinate’s privilege claim was orally directed by the President, even if it was quickly
withdrawn. The following documented assertions may arguably be deemed formal invocations of
the privilege. Four of these assertions occurred during grand jury proceedings.
a. Kennedy Notes (1995) (executive privilege initially raised but never formally asserted)
(Senate Whitewater investigation). S.Rept. 104-191, 104th Cong., 1st Sess. (1995).
b. White House Counsel Jack Quinn/Travelgate Investigations (1996) (House Government
Reform). H.Rept. 104-598, 104th Cong., 2d Sess. (1996).
c. FBI-DEA Drug Enforcement Memo (1996) (House Judiciary).
d. Haiti/Political Assassinations Documents (1996) (House International Relations).
e. 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).
f. In re Sealed Case (Espy), 121 F. 3d 729 (D.C. Cir. 1997) (executive privilege asserted but
held overcome with respect to documents revealing false statements).
g. 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).
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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, which occurred during the Independent Counsel’s
investigations of the Hubbell and Lewinski matters:
h. Thomas “Mack” McLarty (1997) (claimed at direction of President during Hubbell
investigation, but withdrawn prior to filing of a motion to compel).
i. Nancy Hernreich (claimed at direction of President, but withdrawn prior to March 20,
1998 hearing to compel).
j. Sidney Blumenthal (claim rejected by district court, In re Grand Jury Proceedings, 5 F.
Supp. 2d 21 (D.D.C. 1998), and dropped on appeal).
k. Cheryl Mills (claimed on August 11, 1998).
l. 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).
m. Bruce Lindsey (claimed on August 28, 1998). H.Doc. 105-310, 105th Cong, 2d Sess. 206-
09 (1998).
n. 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 Committee on
Government Reform).
8. Bush, George W.
President Bush asserted executive privilege six times, using both written and oral directives to
subordinate executive officials to claim the privilege.
1. On December 12, 2001, President Bush ordered Attorney General John 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 committee held oversight hearings. H.Rept. 108-414,
108th Cong., 1st Sess. (2004).
2. Judicial Watch Inc. v. Dep’t 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).
3. 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 to former White House Counsel Harriet Miers and
Chief of Staff Joshua B. Bolten for documents and testimony relating to the firing of U.S.
Attorneys were subject to a claim of executive privilege. Additionally, these present and
former White House officials were ordered not to comply with document demands or
appear at a hearing. The House passed contempt resolutions against Miers and Bolten on
February 14, 2008. On February 28, the Speaker transmitted the contempt citation to the
U.S. Attorney for the District of Columbia for presentation to the grand jury. The
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Attorney General directed the U.S. Attorney not to present the citation. On March 10,
2008, the House Judiciary Committee initiated a civil suit seeking declaratory and
injunctive relief to enforce the subpoenas. See Comm. on the Judiciary, U.S. House of
Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). On July 31, 2008, the
district court ruled that “The Executive’s current claim of absolute immunity from
compelled congressional process for senior precedential aides is without any support in
the case law.” Id. at 56. The court declared that Ms. Miers was legally required to testify
after being issued a valid congressional subpoena and ordered Ms. Miers and Mr. Bolten
to produce all subpoenaed non-privileged documents. Additionally, while stopping short
of ordering production of a full privilege log, the court did require the executive to
provide more detailed descriptions of all documents withheld on the basis of executive
privilege. Id. at 107. The appeals court stayed the district court order pending appeal, but
the appeals court never issued a ruling on the merits because an accommodation was
reached before it could take up the case. Following the expiration of the 110th Congress
and the arrival of a new Administration, the parties reached an agreement in March 2009.
The executive provided some of the requested documents to the committee and Ms.
Miers was permitted to testify, under oath, in a closed, but transcribed, hearing.
4. On April 9, and May 5, 2008, the House Oversight and Government Reform Committee
issued three subpoenas total to the Administrator of the Environmental Protection Agency
(EPA) and the Office of Information and Regulatory Affairs of the Office of Management
and Budget (OIRA). The subpoenas sought documents related to EPA’s promulgation of
regulations serving national ambient air quality standards for ozone on March 12, 2008.
Another subpoena requested communications between the EPA and OIRA concerning the
agency’s decision to deny a petition by California for a waiver from federal preemption to
enable the state to regulate greenhouse gas emissions from motor vehicles. On June 19,
2008, the Attorney General advised the President that 25 of the documents covered by the
subpoena would be properly covered by an assertion of executive privilege. On June 20,
2008, the EPA Administrator advised the chairman of the committee that he had been
directed by the President to assert executive privilege with respect to the withheld
documents. The committee did not pursue a contempt action.
5. Removal and Replacement of U.S. Attorneys (2008). On July 10, 2008, Karl Rove, a
former White House Deputy Chief of Staff, refused to comply with a subpoena requiring
his appearance before the House Judiciary Committee’s Subcommittee on Commercial
and Administrative Law, claiming absolute immunity on the basis of White House and
DOJ opinions and directions. By a vote of 7-1, the subcommittee rejected his claims of
privilege. On July 30, 2008, the full Judiciary Committee approved a report
recommending that Mr. Rove be cited for contempt by the House. The full House never
voted on the contempt citation. Mr. Rove was permitted to testify as part of the
accommodation reached between the executive and the House at the conclusion of the
Miers/Bolten dispute discussed above.
6. Special Counsel’s Investigation of Revelations of CIA Agent’s Identity. On July 16, 2008,
the President directed the Attorney General (at the behest of the Attorney General) to
assert executive privilege with respect to a House Oversight and Government Reform
Committee subpoena to the DOJ. The subpoena concerned DOJ’s investigation by a
Special Counsel of the public revelation of Valerie Plame Wilson’s identity as an
employee of the Central Intelligence Agency. The documents sought and withheld
included FBI reports of the Special Counsel’s interviews with the Vice President and
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Presidential Claims of Executive Privilege
senior White House staff, handwritten notes taken by the Deputy National Security
Advisor during conversations with the Vice President and senior White House officials,
and other documents provided by the White House during the course of the investigation.
The Attorney General requested that the President formally assert the privilege after the
committee scheduled a meeting to consider a resolution citing him for contempt of
Congress. The chairman of the Oversight Committee delayed a scheduled committee vote
on contempt to allow Members to assess the executive privilege assertion. The committee
later requested a privilege log but neither the DOJ nor the White House responded to that
request.
9. Obama
President Obama has only formally invoked executive privilege once, in relation to a
congressional investigation of Operation Fast and Furious. At the direction of the President, on
June 20, 2012, Deputy Attorney General James Cole informed the House Committee on
Oversight and Government Reform that the President was formally asserting executive privilege
over documents requested pursuant to a subpoena issued as part of the committee’s investigation
of Operation Fast and Furious. A letter from the Attorney General to the President, dated June 19,
2012, laid out the executive’s legal argument for asserting the privilege. The Attorney General
argued that the documents withheld included internal executive branch communications
generated in the course of deliberative process concerning responses to congressional oversight.
Furthermore, he stated that executive privilege encompasses executive branch deliberative
communications and that disclosing such documents would “inhibit the candor of such Executive
Branch deliberations.” Letter to the President from Attorney General Eric Holder, June 19, 2012.
On June 20, 2012, the committee voted to hold Attorney General Eric Holder, the subject of the
subpoena as custodian of DOJ documents, in contempt of Congress. The full House voted in
favor of a criminal contempt citation on June 28, 2012. The House Committee on Oversight and
Government Reform filed a civil lawsuit in the U.S. District Court for the District of Columbia on
August 13, 2012, seeking to enforce the subpoena and compel disclosure of the documents being
withheld due to the assertion of executive privilege.
Author Contact Information
Todd Garvey
Alissa M. Dolan
Legislative Attorney
Legislative Attorney
tgarvey@crs.loc.gov, 7-0174
adolan@crs.loc.gov, 7-8433
Acknowledgments
Over time, authors of this report have included former Legislative Attorneys Morton Rosenberg and Todd
B. Tatelman.
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