This week’s edition of Cline on the Constitution

Executive Privilege

It seems every year we have at least one descriptive term that evolves into a sacrosanct badge of being politically correct.  We’ve had “diversity”, we’ve had “homeless”, and a number of others it wouldn’t take long to conjure. The terms are over-used, frequently misused and so ill-defined they end up obfuscating reality. Their introduction into a conversation demand thoughtfulness be suspended. After a while, one develops a sense of nausea whenever the terms are uttered; truly they become an insult to the ear of anyone who chooses to not define society in accordance with numerical niceties.      

And now we have “transparency.” 

What exactly is transparency?  To some it means disclosure of all information all the time to every living soul regardless of who is hurt, what is diminished, and whether the information is accurate or complete.  Private conversations, the frank exploration of ideas, is considered anathema to the God of “Transparency”.

For anyone in leadership, especially in an executive position, whether it is government or business, there is a basic need to have private conversations with trusted staff. The ability to try out new concepts, to explore radical solutions, whether the ideas are adopted or not, is part of the creativity we should expect of leaders.  However, in these times of instantaneous opinion, the quickest death to good ideas can be “transparency.” Some conversations, some orders, some plans need to kept private, indeed they need to be kept, yes, let’s use that other much maligned term, (gasp!)“Secret.” (Gasp again!)    

This is what Executive Privilege is all about and it is recognized in the realm of constitutional law.

The President has asserted Executive Privilege regarding certain portions of the Mueller Report as well as the underlying evidence for the Muller Report.  Breathlessly certain members of Congress who demanded the information are crying out that we are, as a result, in a Constitutional Crisis.  

Well, not really.  

Let’s explore Executive Privilege and its Constitutional basis.

Article II of the Constitution vests in the President of the United States the “Executive Power.” Contrary to some loose commentary, Congress does not have “oversight” of this function.  There is no constitutional basis for an assertion that one branch of government has “oversight” over a co-equal branch of government regarding their core powers. They may investigate.  They may hold hearings. Within limits.  But they do not have “oversight” of the exercise by the President of the “Executive Power.”  

And in the exercise of the Executive Power, the Supreme Court recognizes the existence of an “Executive Privilege” over confidential material and an unwarranted intrusion upon Executive Privilege violates the Separation of Powers.

As will be shown later, however, the Privilege is not absolute, no more than any power vested in a branch of government is absolute.   However, the Privilege is entitled to “great deference” as Chief Justice Burger stated in U.S. v. Nixon.

Burger went on in the U.S. v Nixoncase to describe the basis for the Privilege:

“The valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.”

One has to pause and contemplate the damage to such processes done to the President by leaks of confidential conversations even with heads of state by unscrupulous government employees virtually from the President’s first day in office.  One of Attorney General’s Barr’s comments during the hearings before the Senate and his description of the motives of leakers is apropos.  It is one way, he said, for subordinates to control their superiors on matters of policy. Consider the impact on the ability of any Executive, much less a President, to carry out his policies if every word uttered in private finds its way to the headlines the next morning.

Chief Justice Burger went on to say, “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 of protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision making.  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.”  

And those considerations, Justice Burger says, provide the basis for a “presumptive privilege” for Presidential communications.

United States v. Nixon, decided in 1974, grew out of the infamous “Saturday Night Massacre.”  A special prosecutor sought tapes of conversations that occurred in the oval office.  President Nixon ordered him fired.  The Attorney general refused, and he and his assistants resigned rather than comply.  Robert Bork was third in line at the Department of Justice and he carried out the orders to fire the Special Prosecutor. A new one was appointed, but then he too demanded the material and took the matter to the Supreme Court.

The primary issue for the Supreme Court was whether the courts could decide the case at all without violating Separation of Powers. Harkening all the way back to Marbury v. Madison, decided at the beginning of the Jefferson administration, the Supreme Court ruled they could, indeed, decide the issue as a question of law without infringing on the Separation of Powers. But in reaching this conclusion they spent considerable time assessing the basis and scope of Executive Privilege. While there have been other cases which addressed the issue, U.S. v Nixon is still the leading case on the principle.  

The court used a balancing test assessing the need of the criminal justice system against the assertion of an “absolute” privilege. 

However, their ruling was qualified.  They repeatedly pointed out that the assertion of Executive Privilege by the Nixon administration was a general one and that the President had not claimed confidentiality based upon a need to protect “military, diplomatic or sensitive national security secrets.”  (There’s that word again!)

There is a clear implication that if such an assertion had been made, the court may have upheld the declaration of Privilege.  

There are two more interesting aspects to this:  First, the Court appended a proviso that a federal court would take care that the information was reviewed and assessed in camera, out of the public eye, where the confidentiality of the material could be protected.  And second, in that case the interests of a criminally accused was in play and that brought about considerations of Due Process and the other Constitutional rights of someone charged with a crime. 

As it relates to the Mueller report, there are a few distinctions:

First Congress is pursuing a civil subpoena process which takes the balancing test for criminal matters off the table.

Second, the information is actually from a Special Prosecutor.  It is not being withheld from him like in the Nixon case.  Second, a Court, not the Congress, may have the right to inspect the confidential material, assuming the President doesn’t provide justification, such as national security. In the later instance, since it is a core Presidential function, even the Court could be excluded from examining the information under the Separation of Powers doctrine.  

Lastly, regarding the Mueller report, at the very least, the Court may find that while confidential Grand Jury information may be assessed by the Court, that does not mean that a leaky Congressional Committee, where confidentiality goes to die, has any right to pierce the Privilege. 

For more articles on the Constitution and other writings by Phil Cline, visit philcline.com