Executive Privilege Under Washington's Separation of Powers Doctrine

JurisdictionWashington,United States
CitationVol. 87 No. 3
Publication year2021


Lee Marchisio

Abstract: Since United States v. Nixon, the U.S. Supreme Court has recognized a qualified executive privilege grounded in federal separation of powers. The privilege allows the President to withhold executive branch communications when disclosure would undermine presidential decisionmaking while executing core constitutional duties. Several states have followed the Supreme Court's lead and adopted an analogous gubernatorial privilege under state constitutional separation of powers. Focusing on Washington State's well-developed separation of powers doctrine and strong populist history, this Comment argues that the Washington State Supreme Court should recognize a qualified gubernatorial privilege that also respects the state's long history of citizen oversight.


The spirit of reciprocity and interdependence requires that if checks by one branch undermine the operation of another branch or undermine the rule of law which all branches are committed to maintain, those checks are improper and destructive exercises of the authority.(fn1)

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 United States v. Nixon,(fn5) the U.S. Supreme Court held that the President has a qualified privilege to withhold executive communications.(fn6) The privilege presumptively applies whenever the President formally asserts it in response to a specific request for information.(fn7) A requestor must then demonstrate a particularized need for the communications at issue.(fn8) If the requestor can demonstrate sufficient need, then a court will review the communications in camera and engage in a balancing test to determine whether the requestor's particular need outweighs the public interest in maintaining the integrity of the President's decisionmaking process.(fn9) In Nixon, the Court held that the need for evidence in a criminal proceeding was sufficient to compel in camera inspection and the subsequent release of admissible and relevant recorded conversations between the President and his advisors.(fn10)

After Nixon, states have recognized varying degrees of analogous gubernatorial privilege grounded in common law(fn11) or state constitutional separation of powers.(fn12) Some states provide a deliberative process exemption(fn13) that protects communications only insofar as they pertain to pre-decisional opinions.(fn14) Under this exemption, factual material divorced from advisor opinion is generally not protected.(fn15) Furthermore, once the governor makes a final decision on the relevant issue, the deliberative process exemption ceases to protect even advisor opinions.(fn16) Other states apply a more robust executive privilege doctrine closely analogous to that applied in Nixon, which exempts both pre- and post-decisional gubernatorial communications. These states protect both fact statements and advisor opinions from compelled disclosure.(fn17) They also protect documents even after a final decision has been made.(fn18)

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 United States v. Nixon and grounded in state constitutional separation of powers. Part I outlines federal executive privilege history and doctrine. Part II discusses how state courts have adopted analogous executive privilege doctrines and traces common themes for demonstrating a requestor's need for access to executive decisionmaking processes. Part III introduces Washington's populist history and outlines how the Washington State Supreme Court conceives state separation of powers. Part IV argues that Washington's separation of powers doctrine requires executive privilege but that the state's populist history should inform that privilege. This history suggests that any gubernatorial privilege should be qualified, and that the privilege should protect only gubernatorial decisionmaking processes that implicate core constitutional functions.


The U.S. Supreme Court first outlined the constitutional foundation for executive privilege in United States v. Nixon.(fn27) The Court grounded the privilege in separation of powers, but also relied on the functional difficulties broad disclosure places on the executive to guide its analysis of individual claims of privilege. State courts draw on this analysis when determining whether to recognize executive privilege and how to analyze specific claims of privilege when they do.

A. The History of Chief Executive Privilege Prior to U.S. Independence Sheds Little Light on State Executive Privilege Doctrine

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.

B. Presidential Assertions of Executive Privilege Shortly After Independence Foreshadow the Modern Doctrine of a Qualified Executive Privilege

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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