Adjudicating Executive Privilege: Federal Administrative Agencies and Deliberative Process Privilege Claims in U.S. District Courts

Date01 September 2019
Published date01 September 2019
Adjudicating Executive Privilege: Federal
Administrative Agencies and Deliberative Process
Privilege Claims in U.S. District Courts
Gbemende E. Johnson
Government transparency is a key component of democratic accountability.
The U.S. Congress and the president have created multiple legislative ave-
nues to facilitate executive branch transparency with the public. However,
when the executive branch withholds requested information from the public,
the federal judiciary has the power to determine whether agencies must
release documents and information to requestors. When enforcing standards
of executive branch transparency, judges must balance concerns of executive
autonomy and judicial intrusion into administrative decisionmaking. While
much judicial scholarship focuses on the decisionmaking on high courts, in
the U.S. context, federal district courts play a key role in adjudicating trans-
parency disputes. In this article, I examine case outcomes in disputes involv-
ing agency claims of deliberative process privilege over internal agency
documents litigated between 1994 and 2004. I find that U.S. federal district
courts largely defer to administrative agencies in transparency disputes.
However, factors such as agency structure and the congruence between judi-
cial and administrative agency policy preferences influence whether federal
judges require executive branch officials to release requested information.
In 2012, an interbranch clash over documents held by the
United States Department of Justice (DOJ) led to a contempt
charge against sitting Attorney General Eric Holder, and a com-
plex legal dispute involving all three branches of U.S. federal gov-
ernment. The congressional investigation of the Department of
Justice and the Bureau of Alcohol, Tobacco, and Firearms (ATF)
lies at the center of the controversy. Specifically, in 2011, the
House Oversight and Government Reform Committee, headed
by Darrell Issa (R-CA), began its investigation of the ATF’s “Oper-
ation Fast and Furious.” During the “Fast and Furious” operation,
which traced back to 2009, Arizona ATF officials allowed guns
purchased illegally to “walk,” or travel, across the border in hope
of tracing the illegal weapons to cartels and gangs in Mexico.
Please direct all correspondence to Gbemende E. Johnson, Government Department,
Hamilton College, 198 College Hill Road, Clinton, NY 13323; e-mail:
“What was ‘Fast and Furious’ and what went wrong?” September 20, 2012,,, Last accessed
June 15, 2014.
Law & Society Review, Volume 53, Number 3 (2019): 823–850
©2019 Law and Society Association. All rights reserved.
However, the program came under increased scrutiny and
criticism after the ATF lost track of hundreds of weapons. In addi-
tion, weapons involved in the “Fast and Furious” operation were
linked to multiple crimes, including the murder of a U.S. Border
Patrol Agent, near the United States–Mexico border (Horwitz
2011). As a part of its investigation of “Fast and Furious,” the
House Oversight and Government Reform Committee requested
a number of documents pertaining to the operation from the
Department of Justice. The DOJ initially released some docu-
ments; however, at the behest of Attorney General Holder, Presi-
dent Obama asserted executive privilege over the withheld
documents (Horwitz and O’Keefe 2012). In response to the DOJ’s
decision not to release all of the requested documents, the House
of Representatives voted to hold Attorney General Holder in con-
tempt, and the Oversight Committee filed a suit in federal court
requesting that the court order the release of the disputed docu-
In transparency disputes, federal district courts must
weigh legislative pronouncements, executive branch autonomy,
and in some cases, the requester’s need for information. What is
the likelihood that a federal court will go against an agency’s
judgment and release internal documents to requesters?
Transparency and Executive-Judicial Authority
In separationof power systems, the judiciary candefine and clar-
ify the boundaries of executive branch action (Haynie and Dumas
2014; Howell2003; Sanchez-Urribarri2011). While direct legalchal-
lenges to presidential action garner more attention than administra-
tive agency litigation, judicial intervention into agency activity can
have dramatic consequences for public policy. This includes policy
reversals or delays and added financial costs. In legal conflicts sur-
rounding government transparency, an agency’s ability to act as a
gatekeeperof internal informationis also at stake.
Transparency, or “the willingness of a government to release
policy relevant information,” is a key component of democratic gover-
nance (Hollyer et al. 2011: 1193). Transparency facilitates greater
public understanding of the factors underlying government policy
and performance (Bellver and Kaufmann 2005: 4; Hollyer et al.
2011). The ability to challenge the legitimacy and legality of govern-
ment decisionmaking necessitates transparency. Transparency is nec-
essary both for electoral accountability and to seek remedies for injury
through the court system.
Committee on Oversight and Government Reform, United States House of Representatives
v. Eric H. Holder, Jr. 1:12-cv-01332 [Document #1]. (D.D.C. 2012).
824 Adjudicating Executive Privilege

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