Wednesday, May 08, 2019

When The Ignorant Claim Executive Privilege To You

That's a loaded title.  And probably confusing.  Since I don't expect any of my readers to be speaking directly to the president or his immediate staff, I wasn't referring to the president when I said "the ignorant."  Rather I meant people who take the president's position that the Mueller Report and the president's tax returns are protected by Executive Privilege.

But it could also mean you the reader might not have looked closely at this term since 1974, or for younger readers, ever.  And it's also to make sure I'm on reasonably sound footing when I talk about the term.

I started this post thinking about how I understood the term back when the Supreme Court rejected Richard Nixon's claim of Executive Privilege back in 1974.   Back then, Nixon argued that the private conversations he had with his advisors needed to be protected so that he could get honest advice, not colored by the fear that what his advisors told him would be made public.  That they could consider a wide range ideas - some of which might be highly controversial - without fear that their conversations being taken out of context. Without out that bubble of confidentiality, it was argued, he might not get the frank, robust advice and debate he needed to make decisions.  (What we learned was that those discussions were often about covering up Nixon's involvement in the Watergate Burglary.)  

Background On My Thinking On This

My take on this is also tinged by my doctoral dissertation which was a reflection on the concept of privacy.  I disputed the common psychological take on privacy - that we all have some private core that needs to be protected from the world - and focused on privacy really as a power issue.  That covering that core was really about the consequences of revelation.  If they were good, people opened up.  If they were bad, people needed to hide the core.   Privacy is about individuals' power to withhold access to their information and power to gain access to other people's information. (There's also a slightly different but overlapping idea of being able to physically seclude oneself from others.)

By the time Nixon resigned, I had already begun researching my dissertation.  In fact his resignation took place while I was  taking an eight day intensive graduate course on privacy taught by Vince Barabba, Nixon's head of the Census Bureau.  It was during this class that Nixon resigned.

What others say about Executive Privilege 

1.   From the Cornell Law School's Legal Information Institute:
"Executive Privilege
Definition from Nolo’s Plain-English Law Dictionary
The privilege that allows the president and other high officials of the executive branch to keep certain communications private if disclosing those communications would disrupt the functions or decision-making processes of the executive branch. As demonstrated by the Watergate hearings, this privilege does not extend to information germane to a criminal investigation."

2.  From Justin Yang in the Penn Undergraduate Law Journal:
Executive privilege is the presidential claim to a “right to preserve the confidentiality of information and documents in the face of legislative” and judicial demands. [1] Although such a privilege is not an explicit right the Constitution grants to the executive branch, its justification is rooted in the doctrine of separation of powers. The argument is that if the internal communications, deliberations, and actions of one branch can be forced into public scrutiny by the other two co-equal branches of government, it will impair the supremacy of the executive branch over its Constitutional activities. This is because the president benefits from the executive branch’s advice and exchange of ideas , and forcing it all into public scrutiny can harm the integrity of these discussions. Additionally, it undermines the ability of the executive branch to hold sensitive military, diplomatic, and national security information. [2]
Of course, because executive privilege is not explicitly mentioned in the Constitution, its exact scope and extent is ambiguous and disputed. After all, it was not until the Watergate scandal in the 1970s that such a privilege of presidential confidentiality was first judicially established “as a necessary derivative of the President’s status in the U.S. constitutional scheme of separated powers.” [1] 
I'd note that Yang's footnote 2 comes before footnote 1.  But both are worth pursuing for more information on this question. 
Footnote 1 goes to a 2014 Congressional Research Report:   "Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments"

From the Lawfare piece in Footnote 2:  
The [Supreme] Court held [in United States v. Nixon (1974)that, notwithstanding the Constitution’s silence on the issue, executive privilege had constitutional underpinnings and derived from the nature of the president’s constitutional powers and obligations, presumably the vesting of the executive power in the president and the president’s authority and responsibility to ensure that the law is executed faithfully.  However, the Court rejected Nixon’s argument that the privilege was absolute and therefore precluded enforcement of the grand jury subpoena. Instead, at least when grounded in the president’s generalized interest in the confidentiality of his communications, the Court viewed the privilege as a qualified one, subject to a balancing of the competing interests and legitimate needs of the respective branches—and ordered the production of the tapes.
I don't expect to produce a Law Review ready article here as I explore this topic.  My main objective is to spark readers to look at this concept in more depth and be better prepared to challenge those who use as a safe-word to end further debate.

These quotes (and the articles they come from) should give people a good start.  But it also matters what the Supreme Court thinks, because this may well get there.  Since most of the pieces I saw on Executive Privilege point out the term is not in the Constitution, and because the conservative majority on the Supreme Court claim to be originalists, you might think that the idea should have no standing with them.  But that's only if you believe that originalist is more than a conservative branded anti-dote to the idea of The Living Constitution concept, which allows them to interpret the Constitution to support their own values.  [See an earlier post I did on the concept of Originalism after Justice Scalia died.]

So it seems useful to look at what The Federalist Society says on this topic.  Unfortunately, I can't find a straightforward statement on their website.  However, there is a debate in which Michael Dorf enumerates five reasons given my Democratic members of Congress why Executive Privilege would not apply.   Unfortunately, I can't really say that this debate represents Federalist Society thinking,  But it does give more practical questions that will be raised.  

It's a debate on whether President Bush (W) could use Executive Privilege to stop his "former presidential counsel Harriet Miers and former political director Sara Taylor from testifying before Congressional Committees regarding the firing of certain U.S. Attorneys."  This is law professor Michael Dorf's opening statement:
That memo states five objections to the assertion of executive privilege.  Two of them are highly technical: (1) the President himself must personally assert executive privilege, but he has not; and (2) Harriet Miers must, but did not, submit a "privilege log."
The third objection rests on what strikes me as a faulty understanding of executive privilege: (3) there has been no showing that President Bush himself received advice or was even involved in the underlying decisions regarding the U.S. Attorneys.  I consider this a faulty view because we have a doctrine of "executive" privilege rather than "Presidential" privilege.  Rooted in separation of powers, it protects the confidentiality of communications within the executive branch.  To be sure, in United States v. Nixon, the Supreme Court talked about the "privilege of confidentiality of Presidential communications," but that's because the case itself involved such communications.  InCheney v. United States District Court, although the issue was not directly presented, the Supreme Court appeared to accept that the Vice President could raise a claim of executive privilege.  (VP Cheney had not yet announced that he's a member of the legislative branch.)
Moreover, precedent aside, it makes sense to extend executive privilege beyond communications directly with the President.  In the same way that a claim of "judicial privilege" should protect (at least as a prima facie matter) case-related conversations among lower federal court judges or even their law clerks, rather than just those between Supreme Court Justices and their respective law clerks, so it seems that executive privilege ought to protect some discussions in which the President does not directly participate.  This view may pose problems for those who believe strongly in the unitary executive—including the current occupant of the White House—but that's not a reason for the House of Representatives to adopt a faulty view of the privilege.
The heart of the House case is the fourth objection: (4) Even if the privilege were properly raised and applicable, it would be outweighed by the House's need for information relevant to investigating serious wrongdoing.  As in the Nixon case, so too here, there is no plausible national security justification for keeping the material secret, and prior administrations have declined to assert executive privilege where Congress sought evidence of wrongdoing by the administration itself.  Whether this objection is correct as a matter of case law depends on whether Nixon—with its demanding burden of persuasion on the administration—applies outside the context of a criminal prosecution.  The Cheney case suggests that it may not, but this is an open question: We can grant that executive privilege is entitled to greater protection in civil cases than in criminal cases; it does not follow that it is entitled to less protection in a direct conflict between the House and the President.
The fifth and final objection appears technical: (5) When a private citizen faces a congressional subpoena and the White House asserts executive privilege, the proper course is for her to comply, unless the White House succeeds in obtaining a court order blocking her from doing so.  This is not merely a technical objection, however.  If correct, it would force the administration to go to court as plaintiff seeking a protective order rather than as a defendant against a motion to compel testimony.  It's disadvantageous to be the plaintiff in these cases because a judicial decision to stay out benefits the defendant.

OK, I've already spent way too much time on what was supposed to be a simple short post.

What can we take from this limited look?

Key Points On Executive Privilege
1.  There exists something called Executive Privilege that is not mentioned in the Constitution, but is said to be implied.  
"[I]ts justification is rooted in the doctrine of separation of powers. The argument is that if the internal communications, deliberations, and actions of one branch can be forced into public scrutiny by the other two co-equal branches of government, it will impair the supremacy of the executive branch over its Constitutional activities "
2.  Its purpose is to allow : 
 "the president and other high officials of the executive branch to keep certain communications private if disclosing those communications would disrupt the functions or decision-making processes of the executive branch."
 3.  Its limits are not absolute.  From the Congressional Research Report cited, but not quoted, above:
"The privilege, however, is qualified, not absolute, and can be overcome by an adequate showing of need."

This is, of course, a simplification, but I think that at least these points are agreed on by most who use this term honestly and not as a political weapon.

 If one were to be flip, one could argue that #2 is irrelevant in Trump's case, because he's already disrupted the functions and the decision making process of the executive branch himself, way more than any disclosures to Congress might.  The damage to our country could reasonably be argued to be in far more danger from not disclosing the details than from disclosing them.

As an endnote, I should explain the source of my bias on this.   My doctoral dissertation and subsequent experience cause me to believe that when it comes to government, the danger of too much information being released is less of a problem than too little being released.

Let's look at another example of conflict between releasing information versus concealing it. Most of the information that Edward Snowden released was problematic because:

  • releasing it was illegal
  • it was  embarrassing to the officials involved, rather than because of provable damage it caused.  

That doesn't mean that there was no damage,  but  I would argue that whatever damage there might have been, was the cost of revealing the massive spying the US government was illegally carrying out on US citizens.

The damage seems limited to revealing intelligence techniques to other spy agencies.  And we hear a lot of risking people's lives, but so far there have been no publicly revealed cases of that happening.  Instead we get wringing of hands over what could happen.  Here, for example, is a Chicago Sun Times article titled "Snowden leak costs still being counted five years later."  What costs do they list?  
According to Melstad [Joel Melstad, a spokesman for the counterintelligence center], Snowden-disclosed documents have put U.S. personnel or facilities at risk around the world, damaged intelligence collection efforts, exposed tools used to amass intelligence, destabilized U.S. partnerships abroad, and exposed U.S. intelligence operations, capabilities and priorities.
“With each additional disclosure, the damage is compounded — providing more detail to what our adversaries have already learned,” Melstad said.
The article, despite the title,  has no 'count of losses.'  Just a hypothetical list of potential, conceptual problems.  The hypothetical risk of the death of a CIA informant  suddenly takes on great significance and justifies concealing major illegal governmental action, while the actual deaths of kids in US detention centers on the Mexican border, or of people who couldn't afford the increased price of their insulin are seen as unfortunate collateral damage to upholding anti-government ideology.

Again, secrecy and privacy give these agencies the cover of never having to give specifics.  It's about risks.  Not about specific instances of death or harm.   Snowden's lawyer, also quoted in the article counters Melstad's take:
". . . [Snowden’s lawyer, Ben Wizner] said the government has never produced any public evidence that the released materials have cause “genuine harm” to U.S. national security.
“The mainstream view among intelligence professionals is that every day and every year that has gone by has lessened the value and importance of the Snowden archives,” Wizner said. “The idea that information that was current in 2013 — and a lot of it was much older than that — might still alert somebody to anything in 2018 seems like a stretch.”
The point I'm making is that the secrecy does harm as well - like illegally spying on Americans - that also needs to be weighed in the balance.  We have to weigh whether the argument offered (in this case Executive Privilege)  is being legitimately applied, or is simply a smoke screen to cover up unsavory and illegal practices.   I hope this gives you more depth when people throw Executive Privilege around and stimulates you to find out more than my attempts at understanding allow.

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