Executive Privilege Under Washington's Separation of Powers Doctrine
Publication year | 2021 |
INTRODUCTION
The separation of powers doctrine is deeply rooted in Washington jurisprudence.(fn2) It protects each branch of government from encroachment into its core sphere of competence, guarding against burdensome checks on its power by the other branches.(fn3) Nevertheless, the Washington State Supreme Court has so far avoided determining the extent to which the executive branch may shield its internal decisionmaking processes from a judicial order to disclose records for criminal proceedings, civil litigation, or public records requests.(fn4)
In
After
The Washington Public Records Act (PRA)(fn19) guarantees citizen access to public records of state and local governmental bodies, including the governor's office as a state agency.(fn20) The PRA includes a deliberative process exemption,(fn21) which the Washington State Supreme Court strictly limits to pre-decisional opinions.(fn22) The Court refuses to protect communicated opinions once a final decision has been reached.(fn23) Furthermore, courts reviewing disclosure requests start with a strong presumption in favor of disclosure and apply the statutory exemption narrowly.(fn24) This framework is consistent with Washington's populist constitutional history.(fn25) The ratifiers of the constitution feared special interest influence over government and instituted robust democratic checks on government power.(fn26)
The PRA's liberal construction and its narrow exceptions leave Washington's executive branch open to public records requests that encroach upon its decisionmaking processes and threaten separation of powers. This Comment argues that the Washington State Supreme Court should recognize an executive privilege doctrine modeled after the qualified privilege outlined in
I. DESPITE NO CLEAR PRECEDENT, THE U.S. SUPREME COURT RECOGNIZED EXECUTIVE PRIVILEGE IN
The U.S. Supreme Court first outlined the constitutional foundation for executive privilege in
Prior to U.S. Independence, English common law was ambiguous as to executive privilege. Structural differences between modern popularly elected state governors and both English Parliament and monarch-appointed colonial governors distinguish English precedent. Yet, this history also demonstrates some balance between the Monarch's sovereignty and executive accountability to constituencies beyond the Crown itself.
As early as 1621, Parliament had the power to inquire into the activities of the King's ministers.(fn28) Although parliamentary inquiry was largely used as a prelude to impeachment, inquiry extended generally to executive conduct over war making, foreign affairs, and accounting of public moneys, and was used as a basis for legislation and to evaluate executive law enforcement.(fn29) Even so, sensitive correspondences, the release of which could jeopardize foreign affairs, were subject to delayed parliamentary inspection at least on one occasion.(fn30) Modern scholars debate whether Parliament's authority to compel disclosure of the Monarch's documents derived from its inherent power or merely from its practical political power.(fn31) This uncertainty may limit the utility of English precedent for interpreting executive privilege.(fn32)
United States colonial precedent is also distinguishable. Although several assemblies possessed the power of inquiry over the Monarch's officers,(fn33) colonial governors, as extensions of the Crown, possessed the sole power to remove executive and judicial officers.(fn34) The Monarch's dominance over the colonies through appointed governors further undermines the analogy between colonial and state governors.(fn35) In all, while the structural differences between appointed colonial administrations and elected post-independence administrations limit the utility of English precedent, the balance between the sovereign Monarch and executive accountability was not merely academic prior to independence.
Building on English and colonial precedent,(fn36) early instances of post-independence presidential withholdings demonstrate this tension between privilege and accountability. During the nation's first executive administration, President George Washington withheld executive communications from Congress.(fn37) President Washington's firm belief in an executive power to withhold communications to protect the public interest(fn38) was never challenged by Congress or in court.(fn39) Rather, the first serious challenge to a President's withholding came during the 1807 treason trial of Aaron Burr.(fn40)
Through subpoena, Burr's counsel demanded that President Jefferson turn over a letter he received from General James Wilkinson.(fn41) The President objected, asserting a privilege to withhold the letter as a private communication whose release could endanger national security.(fn42) Chief Justice Marshall, sitting in circuit, issued the subpoena nonetheless, but noted that...
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