|About the Book|
Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive- congressional relations since at least 1792. Few suchMorePresidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive- congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution. The vast majority of these disputes are resolved through political negotiation and accommodation. In fact, it was not until the Watergate-related lawsuits in the 1970’s seeking access to President Nixon’s tapes that the existence of a presidential confidentiality privilege was judicially established as a necessary derivative of the President’s status in our constitutional scheme of separated powers. There have been only four cases involving information access disputes between Congress and the executive, and two of these resulted in decisions on the merits. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege. Under those precedents, the privilege, which is constitutionally rooted, could be invoked by the President when asked to produce documents or other materials or information that reflect presidential decision making and deliberations that he believes should remain confidential. If the President asserts the privilege, the materials become presumptively privileged. The privilege, however, is qualified, not absolute, and can be overcome by an adequate showing of need. Finally, while reviewing courts have expressed reluctance in balancing executive privilege claims against a congressional demand for information, they have acknowledged they will do so if the political branches have tried, in good faith, but failed to reach an accommodation.Until the District of Columbia Circuit’s 1997 ruling in In re Sealed Case (Espy), and its 2004 decision in Judicial Watch v. Department of Justice, these earlier judicial decisions left considerable gaps in the law of presidential privilege. Among the more significant issues left open included whether the President has to have actually seen or been familiar with the disputed matter- whether the presidential privilege encompasses documents and information developed by, or in the possession of, officers and employees in the departments and agencies of the Executive Branch, outside of the Executive Office of the President- whether the privilege encompasses all communications with respect to which the President may be interested or is confined to presidential decision making and, if so, is limited to a particular type of presidential decision making- and precisely what kind of demonstration of need must be shown to overcome the privilege and compel disclosure of the materials. The unanimous panel in Espy, and the subsequent reaffirmation of the Espy principles articulated in Judicial Watch, addressed each of these issues in a manner that may have drastically altered the future legal playing field in resolving such disputes. A more recent dispute with Congress involving the removal and replacement of nine United States Attorneys drew formal claims of privilege by President George W. Bush. Those privilege claims were challenged in a civil suit brought by the House Judiciary Committee seeking declaratory and injunctive relief with respect to refusals to appear, to testify, and to provide documents by two subpoenaed present and former officials. A district court decision on the merits, upholding the committee’s challenge supplements the D.C. Circuit case law on this issue.President Obama formally invoked executive privilege for the first time on June 20, 2012, over documents sought by the House Committee on Oversight and Government Reform in its ongoing investigation into Operation Fast and Furious.