Note: the negative executive privilege.

AuthorMagid, Adam K.

INTRODUCTION I. THE LACK OF A CONSTITUTIONAL FOUNDATION A. A Constitutional Reading 1. Text 2. Structure 3. Intent 4. History B. Counter-Arguments II. WHAT IS LEFT OVER: THE NEGATIVE EXECUTIVE PRIVILEGE A. The Subpoena Power in Criminal Cases B. The Subpoena Power in Civil Cases C. The Subpoena Power of Congress III. MAKING SENSE OF EXECUTIVE PRIVILEGE JURISPRUDENCE A. Criminal Cases B. Civil Cases C. Cases Involving Congress CONCLUSION INTRODUCTION

In January 2007, the Justice Department dismissed seven U.S. Attorneys: Kevin Ryan of San Francisco, Carol Lam of San Diego, Daniel Bogden of Nevada, David Iglesias of New Mexico, H.E. Cummins III of Arkansas, Paul Charlton of Arizona, and John McKay of Washington State. (1) Congressional Democrats branded the dismissals a "political purge, intended to squelch corruption investigations or install less independent-minded successors." (2)

As Democrats pushed forward with an investigation, the issue of executive privilege came to the forefront. Senator Patrick J. Leahy of Vermont, chairman of the Senate Judiciary Committee, "insisted ... that Karl Rove and other top aides to President Bush must testify publicly and under oath" about the scandal. (3) The White House responded that it was "highly unlikely" that the President would "waive executive privilege to allow his top aides to testify publicly," (4) and instead offered to allow private interviews with Deputy Chief of Staff Karl Rove and White House Counsel Harriet Miers, as well as access to e-mail messages and communications about the dismissals, but not those between White House officials. (5) Democrats rejected the offer and threatened to subpoena Mr. Rove and others. (6)

Congress decided to take action, causing the conflict over executive privilege to enter formal, rather than simply rhetorical, channels. After congressional subpoenas were issued for documents related to the dismissal of the U.S. Attorneys, the White House invoked executive privilege and refused to comply. (7) Congress demanded that Ms. Miers testify and that White House Chief of Staff Joshua Bolten turn over related documents; Ms. Miers did not show up and Mr. Bolten failed to comply with the request. (8) The full House of Representatives voted to hold Ms. Miers and Mr. Bolten in contempt of Congress. (9) In February 2008, the Speaker of the House certified a Contempt Report to Jeffrey A. Taylor, U.S. Attorney for the District of Columbia, directing Mr. Taylor to present the contempt charges against Ms. Miers and Mr. Bolten to a grand jury. (10) Attorney General Michael B. Mukasey, however, foreclosed the possibility of criminal enforcement after determining "that non-compliance ... with the Judiciary Committee subpoenas did not constitute a crime, and therefore 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." (11) In response, the House Committee on the Judiciary filed an action seeking declaratory judgment and injunctive relief compelling Mr. Bolten and Ms. Miers to comply with the previously issued subpoenas. (12)

The motivating question behind this Note is how a court should deal with the above scenario--the effort by a congressional committee to enforce a subpoena against executive branch officials where the executive branch officials, in turn, attempt to forestall the inquiry by asserting executive privilege. The recommendation of this Note is that courts should view such cases through the prism of a negative executive privilege, which focuses on the information-seeker's legal entitlement to executive branch information rather than the executive's affirmative power to resist requests for such information.

In Committee on the Judiciary v. Miers, (13) Judge John Bates of the District Court for the District of Columbia made his own effort to address the U.S. Attorney conflict. The opinion, however, deals primarily with a number of peripheral issues--including standing, justiciability, and discretionary powers--and not the specific issue of executive privilege. (14) The only place where the decision comes close to addressing a claim of executive privilege is where it holds that Ms. Miers and Mr. Bolten cannot assert absolute immunity in the face of the issued subpoenas. This, however, is a different issue, based on a different legal theory. (15) Thus, the question remains unexamined whether executive privilege, as opposed to a different theory of immunity, should block such a congressional inquiry.

Before delving into this question, it is necessary to understand the scope of the inquiry. This Note is limited to analyzing claims of executive privilege, not other forms of privilege or immunity. (16) Executive privilege refers to "the executive's 'right to withhold information from either Congress or the judicial branch'--and thus, indirectly, from the people." (17) This Note is also limited to analyzing executive privilege in the context of executive branch communications and deliberations not related to national security. There are three reasons for this limitation. First, a separate "state secrets" privilege covers national security matters. "[S]tate secrets relate to national security and are protected by absolute privilege, while executive privilege relates to non-national security matters and is a qualified privilege, capable of being overcome upon a proper showing of need." (18) When "the layer of 'national security' issues is peeled away, it is easier to focus on the true competing interests in play." (19) Second, the state secrets privilege raises issues specifically related to national security, (20) not to the general assertions of privilege at issue, for example, during Watergate or the U.S. Attorney scandal. (21) Third, this limitation allows for a more focused inquiry: the right of coordinate branches to access the internal communications and deliberations of executive branch officials.

The general question--how courts should handle executive privilege cases--is worth asking because existing case law and scholarship do not provide any simple answers. The leading U.S. Supreme Court case, United States v. Nixon, (22) states unequivocally that an executive privilege exists:

The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. (23) But the guidance it provides lower courts is, at best, unhelpful: "[T]he legitimate needs of the judicial process may outweigh Presidential privilege." (24) Thus, the Supreme Court appears to call for a balancing test, but there is little indication as to when (aside from specific criminal cases (25)) one might outweigh the other, at least based on the language of the test alone. (26)

Existing scholarship is also of limited value, at least as related to the adjudication of executive privilege disputes. Scholars have discussed a diverse array of issues, none of which have any direct bearing on the adjudication process, including why the political process largely resolves, or should resolve, executive privilege issues; (27) why courts should be more proactive in making executive privilege decisions; (28) why executive privilege actually does not, or should not, exist at all; (29) why executive privilege does not exist, but Congress should codify it by statute; (30) and how an executive order has helped to wrongly expand executive privilege. (31) In 1957, Joseph Bishop attempted to describe how courts handle different types of executive privilege cases, (32) but his work preceded the modern executive privilege cases and did not offer any prescriptions. David Frohnmayer and Ellen Stanton have made theoretical contributions to the debate over executive privilege, but they too have not directly addressed how courts are to make such decisions. (33) Thus, after all this scholarly treatment, the work on executive privilege amounts to an unhelpful morass of concepts and ideas with no clear guidance for courts.

This Note presents a new analytical framework for courts to employ in adjudicating cases in which the executive attempts to resist demands for internal executive branch communications and deliberations. Under a negative executive privilege, the executive derives its privilege to withhold information from the absence of the information-seeker's power to compel disclosure. In other words, courts should examine the legal entitlement of the information-seeker to executive branch communications and deliberations instead of the power of the executive to resist demands for such information. While this Note does not provide simple, clear-cut rules that will make executive privilege decisions easy, it does offer an analytical framework for courts to employ that will provide more coherence to executive privilege decisions in light of logic, the Constitution, and established principles of law.

Part I of this Note explains the lack of a constitutional foundation for an affirmative executive privilege, or a constitutionally-rooted power bestowed upon the executive to resist legal requests. Part II describes the general contours of the more defensible negative executive privilege in the context of requests for information by criminal courts, civil courts, and Congress. Part III shows that the negative executive privilege not only works as a normative...

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