Open Thread: Behind the Executive Privilege Claim

Now that the White House has claimed executive privilege over a large number of documents, what happens next? Dick Cheney's former lawyer, Shannen Coffin, takes a look at the assertion and its likelihood of standing up in court should the House of Representatives sue to enforce a contempt citation:

Executive privilege comes in at least two forms — the first, and strongest, form of privilege is the “presidential communications” privilege, which, as its name suggests, deals with direct communications with the president (or his closest advisers who are communicating on his behalf, such as gathering information to convey advice to the president). Here, there is no claim that any of the communications at issue involved or even related to the president, so the president does not invoke the presidential communications privilege.

Instead, the president invokes the second, more common, form of “executive privilege,” the so-called “deliberative process” privilege. This is a qualified privilege and protects pre-decisional communications within the executive branch. The theory behind the privilege is that government decision-makers should not live in a fishbowl, and that candid, and sometimes unpopular, advice may be needed to make the best decisions. Exposing those decisions to the scrutiny that public document dumps entails (think how much you’d enjoy your entire e-mail outbox on the front page of the New York Times) would necessarily chill internal deliberations and result in less effective government decision-making.

Here, the president (on the request and advice of the attorney general) concluded that the deliberative process privilege applied to purely internal Department of Justice deliberations regarding how the department should respond to both congressional inquiries and media inquiries. None of those deliberations were proximate to the White House or the president — but entailed only DOJ employees in the ordinary course of their jobs (and we don’t know how high up in DOJ those deliberations went, so we don’t know if the attorney general himself was involved).

Notwithstanding the lack of proximity to the president, there is a reasonable basis for invoking the privilege with respect to pre-decisional communications involving how the Justice Department should respond to congressional inquiries. There would be separation-of-powers problems if Congress could readily peel back the curtain from any executive-branch agency to see which agency employee said what to whom about any question that a congressional committee might pose to the agency. But media inquiries? The Department’s Office of Public affairs plays an important function, but is it so important that the process by which it decides to answer a blogger’s question should be the matter of a presidential invocation of privilege? Holder provides no real support for that proposition in his letter to the president, and it seems unlikely that a court would find a significant executive interest in such everyday and relatively mundane decisions.

Saying that the invocation of privilege is reasonable as to a particular category of communications is not the same as saying that the privilege should be upheld. As noted, the deliberative-process privilege is a qualified one, and it gives way to a substantial need by a coordinate branch of government. Thus, it stands little chance of surviving in the context of, say, a criminal trial or an impeachment proceeding. Where allegations of wrongdoing are at issue, the qualified deliberative-process privilege is not much of a hurdle to compelled disclosure.  

There are many more details in the piece that are worth reading. Given that the Bush Administration did make several assertions of executive privilege, Coffin's piece is very useful.

Matthew Sheffield
Matthew Sheffield
Matthew Sheffield, creator of NewsBusters and president of Dialog New Media, an internet marketing and design firm, left NewsBusters at the end of 2013