It has been noted that there is no trace of any presidential privilege, meant as one or more powers only implicitly vested in the President by the Constitution, in the debates at the Convention of Philadelphia of 1787726. Berger brings this approach based on legislative
724 See F
ISHER, The Politics of Executive Privilege, supra note 161, at 13-14.
725 A
BRAHAM D.SOFAER, Executive Privilege: An Historical Note, 75 Colum. L. Rev. 1318, 1321 (1975).
726 See A
RCHIBALD COX, Executive Privilege, 122 U. Pa. L. Rev. 1383, 1391 (1974) (noting that “[t]he very few directly pertinent statements by members of the Constitutional Convention assert the absence of any presidential privilege.”) See, also, Myers, 272 U.S., supra note 668, at 205 (“In the proceedings of the Constitutional Convention ho hint can be found of any executive power except those definitely enumerated or inferable therefrom or from the duty to enforce the laws.”)
160
history even further by referring to the state conventions and constitutions to grasp the essence of executive power and thereby strengthen its theory against the existence of executive privilege727. However, Fisher has argued that the provisions of the state constitutions may be sifted to pinpoint where at least part of the wording of the Federal Constitution of 1787 stems from, still they are of no use to determine the scope of the President’s remit728. More generally, Berger’s interpretation of the Constitution has been criticized for being too narrow729, and thus for being fossilized on formalism, i.e., on the plain text of the constitutional provisions730. Some justices of the Supreme Court have followed a similar approach731.
727 See Executive Privilege, at 51-58. Berger refers to Goebel, Jr., who has argued that the word
“executive” did not belong in the English common law system. However, this word entered the American law vocabulary “through its employment in various state constitutions adopted from 1776 onward [as a] revolutionary response to the situation precipitated by the repudiation of the royal prerogative.” Id., at 51 (quoting JULIUS GOEBEL,JR., Ex Parte Clio, 54 Colum. L. Rev. 450, 474 (1954)). By relying upon such a consideration, Berger deems the reference to the provisions of the several state constitutions to be the first stage to delimit the scope of the executive power. Executive
Privilege, ibid.
728 See F
ISHER, Raoul Berger on Public Law, supra note 584, at 177 (maintaining that the text of state constitutions may be useful for the interpretation of the U.S. Constitution just “for the source of some constitutional language, but the original state charters tell us very little about the anticipated breadth of executive power at the national level.”)
729 See W
INTER, JR., The Seedlings For the Forest, supra note 660, at 1731 (arguing that “the principal analytic mode Berger employs is so narrow as to be of very limited usefulness.”)
730 See R
AOUL BERGER, Government by Judiciary: The Transformation of the Fourteenth
Amendment, 297 (Harvard University Press, 1977) (“Like Chief Justice Burger and Justices Douglas
and Frankfurther, I assert the right to look at the Constitution itself stripped of judicial incrustations, as the index of constitutional law and to affirm that the Supreme Court has no authority to substitute an ‘unwritten Constitution’ for the written Constitution the Founders gave us and the people ratified.”) For a recent formal interpretation of the Constitution, see DAVID GRAY ADLER, The
Framers and Executive Prerogative: A Constitutional and Historical Rebuke, 42 Presidential Stud.
Q. 376, especially at 381-383 (2012) (refusing to recognize to the executive branch any prerogatives exceeding the powers expressly vested in it by the Constitution).
731 See the justices mentioned by Berger in the passage quoted in the previous note. See, also, Myers,
272 U.S., supra note 668, at 116 (Taft, C.J.) (subjecting to a narrow interpretation the separation of powers between the three branches of the Federal Government as devised by the Framers in the Constitution). According to the Chief Justice, in particular, “the branches should be kept separate in all in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires.”)
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Berger has noted that the term “executive privilege,” which is not expressly mentioned by the Constitution, was coined in 1958732. The roots of the doctrine of executive privilege, however, date back to 1954, a time in which Congress, boosted above all by Sen. McCarthy’s anti-Communist campaign, appeared to be obsessed with an almost constant exercise of its power of inquiry733. As a result, as Clark has argued, President Eisenhower deployed the doctrine “in order to safeguard the innermost workings of the executive branch from this boundless congressional probing.”734 On May 17, 1954, while the Subcommittee of the Senate Committee on Government Operations was conducting an investigation, the President sent the Secretary of Defense a letter735 wherein the existence of executive privilege was advocated736. The letter points out that even though the relations between the three branches of the Federal Government must be based on full cooperation, practice shows that the President denied to Congress access to executive branch information whenever he found that the requested material “was confidential or its disclosure would be incompatible with the public interest or jeopardize the safety of the Nation.”737 Candor in the exchange of advice and opinions between executive branch employees – the letter observes – ensures “efficient and effective administration,” but such candor demands the ability to withhold information from Congress738. It is not in the public interest – the letter continues – to disclose any communications within the executive branch or any documents concerning the exchange of opinions739. Accordingly, the Secretary of Defense has to instruct all employees
732 See Executive Privilege, at 1. See CLARK, Executive Privilege, supra note 667, ibid. (maintaining
that “[o]ne of the most surprising aspects of executive privilege is how recently the doctrine has become significant.”) Clark, however, specifies that the term “executive privilege” was used as early as 1955. Id., at 324 note 3 (referring to TALFORD TAYLOR, Grand Inquest: The Story of
Congressional Investigations, 97 (New York, 1955)).
733 Id., at 324-325. 734 Id., at 325. 735 See D
WIGHT EISENHOWER, Letter to the Secretary of Defense Directing Him To Withhold Certain
Information from the Senate Committee on Government Operations (May 17, 1954), in Public Papers
of the Presidents of the United States, Dwight D. Eisenhower – 1954: Containing the Public
Messages, Speeches, and Statements of the President, January 1, to December 31, 1954, , 483
(Washington, D.C., U.S. Gov’t Print. Off., 1960).
736 See S
CHLESINGER JR., The Imperial Presidency, supra note 146, at 156 (arguing that the 1954 letter contained “the most absolute assertion of presidential right to withhold information from Congress ever uttered to that day in American History.”)
737 E
ISENHOWER, Letter to the Secretary of Defense, supra note 735, ibid.
738 Ibid.
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of his Department neither to testify about any such communications nor to release any documents concerning the exchange of opinions, and the letter makes it clear that this prescription applies “regardless of who would be benefited by such disclosures.”740 The 1954 letter, therefore, adopts a broad acceptation of the concept of executive privilege, an acceptation that includes the core of the content of Exemption 5 of the FOIA – the deliberative process privilege741.
Actually, the germ of the doctrine of executive privilege dates back to a few years before the Eisenhower letter, and lies in a study conducted in by Herman Wolkinson742, who was then working as an attorney at the Department of Justice743. According to this study, federal courts have always conceded that the U.S. President and the heads of departments enjoy “an uncontrolled discretion” to withhold executive branch information and papers744. Commenting on that statement, however, Fisher has argued that Wolkinson’s position was already incorrect when it was written, and “is even less true today as a result of litigation and political precedents established over the past half century.”745 Furthermore, Wolkinson has excluded the existence of any means by which Congress could compel the heads of departments and agencies to release information they decided to withhold, provided that department and agency determinations are sanctioned by the President. Even if a public interest in disclosure is involved, he explains, “the President is the [only] judge of that interest.”746 Fisher, however, again opposes the assertion by contending that Wolkinson overlooked the coercive powers of Congress, which “may hold both executive officials and private citizens in contempt.”747
740 Id., at 484.
741 See infra, Chapter 3, Part II. 742 See H
ERMAN WOLKINSON, Demands of Congressional Committees for Executive Papers (Part
I), 10 Fed’l Bar J. 103 (1949).
743 In that study, Wolkinson was just expounding his own opinion on the withholding of information
by the Chief Executive, as he had received no official assignment by the Truman administration. See SCHLESINGER JR., The Imperial Presidency, supra note 146, at 155.
744 W
OLKINSON, Demands of Congressional Committees for Executive Papers, supra note 742, at 103.
745 F
ISHER, The Politics of Executive Privilege, supra note 161, at 3.
746 W
OLKINSON, Demands of Congressional Committees for Executive Papers, supra note 742, at 107.
747 F
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History shows that the presidents of the United States have deployed a privilege to withhold certain information from Congress since the dawn of the American Republic748. As already noted, however, executive privilege assumed an official shape only under the Eisenhower administration749, which – it has been calculated – appealed to the privilege more than fourthy times750. In 1958, then-Attorney General Rogers issued a memorandum that advocated the ability of the President to withhold information from Congress and thus to respond to requests for information by refusing – in whole or in part – the release of the sought material751. The memorandum banks on a long series of presidential precedents, most of which pertain to the early decades of the American Republic, to assert executive privilege. This memorandum is vehemently criticized – as was predictable – by Berger752, who strives to prove the misuse of such precedents to justify the existence of a traditional practice according to which the U.S. presidents refuse the disclosure of information to Congress when they deem it proper to keep some amount of secrecy753. The recalled precedents include the underlying affair of one of the leading case in the American legal system – Marbury v. Madison. Berger himself, despite contending that such precedents “run counter to the deep- seated American tradition against secrecy in public affairs,”754 concedes that the
748 See MARK J.ROZELL, Restoring Balance to the Debate over Executive Privilege: A Response to
Berger, 8 Wm. &. Mary Bill Rts. J. 541, 552 (2000) (stressing that since George Washington, all
presidents have somehow exercised an implicit power to keep information secret and thus have denied access to the legislative branch). See also PRAKASH, A critical Comment on the
Constitutionality of Executive Privilege, supra note 589, at 1143 (maintained that “[f]rom the earliest
days of the Republic, American Presidents have asserted a right to conceal executive communications.”)
749 See S
CHLESINGER JR., The Imperial Presidency, supra note 146, at 156 (arguing that “when by 1954 the McCarthy inquisition had reached a degree of squalor that exhausted even Eisenhower’s forbearance, the administration turned to Wolkinson as ultimate authority.”)
750 See R
OZELL, Executive Privilege. The Dilemma, supra note 176, at 44.
751 See U.S. Congress, Senate Committee on the Judiciary, The Power of the President to Withhold
Information from Congress, 85th Cong., 2nd sess. (Washington, D.C.: Gov’t Print. Off., 1958-1959),
2 parts.
752 See Executive Privilege, at 164 (stigmatizing the memorandum as “a farrago of internal
contradictions, patently slipshod analysis, and untenable inferences.”)
753 Id., at 164-203. 754 Id., at 203.
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memorandum could boast considerable following amid executive branch officials755, and in this regard, he refers to a 1971 testimony by William H. Rehnquist before Congress756.
Between July 27 and August 5, 1971, indeed, the Subcommittee on Separation of Powers of the Committee on the Judiciary of the U.S. Senate held a series of hearings on executive privilege757, and William Rehnquist was called upon to testify. Rehnquist, then Assistant Attorney General and later Justice of the Supreme Court, begins his testimony by observing that unlike such a subject whose regime has fixed boundaries as the law of real property, executive privilege is concerned with “a broad area of government in which both the legislative and executive branches have claims which are both legitimate and often conflicting.”758 Actually, Rehnquist pinpoints not only Congress but also federal courts as possible requesters and thus as authorities that may need access to information. He defines executive privilege, indeed, as “the constitutional authority of the President to withhold documents or information in his possession or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the Government.”759 The Constitution expressly provides for neither the power of the President to refuse the release of executive branch information to Congress nor the power of the latter to force the President to disclose the requested material760. However, both powers – Rehnquist argues – are implicitly recognized by the Constitution, for they “are firmly rooted in history and precedent.”761 McGrain v. Daugherty762 and United States v. Reynolds763 are mentioned as cases wherein the Supreme Court contended that – respectively – Congress has the power to inquire into the executive branch in addition to that to legislate, and the executive branch enjoys the privilege not to comply with a request for information. Rehnquist notes that such
755 Id., at 164 (maintaining that the Rogers memo has become – or rather had become by the time
Berger wrote his book – “a bible for the executive branch.”)
756 Ibid.
757 Executive Privilege: the Withholding of Information by the Executive – Hearings before Senate
the Subcommittee on Separation of Powers of the Committee on the Judiciary, U.S. Senate, 92nd Cong., 1st Sess., 1971) (Washington, D.C., U.S. Gov’t Print. Off., 1971).
758 Id., at 420 (written statement of William H. Rehnquist). 759 Id., at 421.
760 Ibid. 761 Ibid.
762 McGrain, 273 U.S., supra note 593, at 175. 763 Reynolds, 345 U.S., supra note 479, at 8.
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cases did not address legislative-executive information access disputes764. In fact, he goes on, “there is no authoritative decision settling the extent to which Congress may compel the production of documents or testimony on the part of members of the executive branch.”765 The main reason for that lies in practice, and thus in the concrete dynamics of the relations between the two branches of the Federal Government. Such dynamics are based on cooperation, as proved by the fact that “[t]he vast majority of requests by congressional committees for testimony from the executive branch are freely complied with […].”766 Accordingly, Rehnquist concludes that executive privilege arises – as the index of an ongoing conflict between the legislative and executive branches – only in the “very rare case” in which a committee of Congress “after mature consideration feels that information in the possession of the executive branch is essential to the discharge of the legislative function, and where the executive feels that the constitutional principle of separation of powers would be infringed by its furnishing of such information […].”767
Since the Eisenhower administration, the presidents have often invoked executive privilege768 to withhold information from the other two branches of government, albeit not with the same frequency. In a letter dated March 31, 1965, Representative John E. Moss formally requested to President Lyndon B. Johnson to reaffirm the principle, previously established by President Kennedy, that only the Chief Executive may claim the application of the privilege or he must approve of its usage in any event769. Moss also underscores the different approach to the privilege by presidents Eisenhower and Kennedy. Under the former – Moss recalls – a report prepared by the House Committee on Government Operations
764 Ibid. (“Just as McGrain v. Daugherty involved the compulsory process of Congress to directed
against a private citizen rather than against a representative of the executive branch, United States v. Reynolds involved compulsory process of the judicial branch rather than the legislative branch.”)
765 Executive Privilege: the Withholding of Information by the Executive, supra note 757, at 421. 766 Ibid.
767 Id., at 421-422.
768 Schlesinger, Jr., has noted that the old-fashioned sound of “executive privilege” – and it is quite
clear that the Author has inferred such a feature of the sound from the term “privilege” – might have fostered its entrenchment as a legal institution and thus as a means in the hands of presidents to avoid the disclosure of certain information. See SCHLESINGER JR., The Imperial Presidency, supra note 146, at 159 (“Executive privilege had the advantage of sounding like a very old term. It passed rapidly political discourse and very soon […] acquired the patina of ancient and hallowed doctrine.”)
769 See L
YNDON B.JOHNSON, Letter to Representative Moss Stating Administration Policy as to
Claims of “Executive Privilege” (April 2, 1965), in Public Papers of the Presidents of the United
States, Lyndon B. Johnson – 1965: Containing the Public Messages, Speeches, and Statements of the
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documented fourthy-four cases in which executive branch officials refused to provide Congress with information on the basis of the 1954 letter mentioned above, and only some of those cases “involved important matters of government,” while in most of them Congress was forbidden from gaining access to information and records concerning “routine” executive branch business770. A tendency to ensuring the maximum degree of cooperation between the branches of government, on the contrary, pervaded the Kennedy administration, which deployed the privilege with extreme caution771. In his reply, President Johnson assures Hon. Moss that he will follow in Kennedy’s footsteps with respect to the claim of executive privilege. It is interesting to point out that Moss, then Chairman of the Foreign Operations and Government Information Subcommittee of the Committee on Government Operations, is mostly famous for being one of the main advocates of the Freedom of Information Act.
A watershed in the usage of executive privilege is the Nixon administration, which probably still represents the apex of the range the weapon of executive privilege has ever reached. Richard M. Nixon, indeed, unsuccessfully claimed that the President enjoyed “virtually unchecked discretion to block disclosure of any information related to the executive branch which the President believed contrary to the public interest.”772 In United
States v. Nixon773, the President sought to persuade the Supreme Court to accept the theory that the Constitution implicitly recognizes absolute executive privilege, which applies to all presidential communications774. It is quite straightforward to understand that admitting an unfettered application of the doctrine of executive privilege would mean to pave the way for potential abuses, as President Nixon’s conduct shows775. Bad faith, indeed, is what induced the President to adopt such an extreme interpretation of executive privilege, as he was just
770 Ibid.
771 Ibid. In a letter dated February 8, 1962, aimed at communicating the refusal to releasing certain
information to a Senate subcommittee, President Kennedy clarified that the withholding of information may not be a response to any request of information, and therefore the denial of access may not become an ordinary practice. Ibid.
772 C
LARK, Executive Privilege, supra note 667, at 325.
773 418 U.S. 683 (1974).
774 Id., at 703 (reporting that the President’s counsel sets forth an interpretation of the Constitution –
namely, of its Article II, the article devoted to the President – “as providing an absolute privilege of confidentiality for all Presidential communications.”)
775 See C
OX, Executive Privilege, supra note 726, at 1433 (arguing that if executive privilege were to have an unlimited scope, it would really be “a useful way of hiding inefficiency, maladministration, breach of trust or corruption, and also a variety of potentially controversial executive practices not authorized by Congress.”)
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trying to prevent a special prosecutor from gaining access to the Watergate tapes and related documents and – more generally – to all records and documents concerning the Watergate scandal776. It has been observed that the misuse of the doctrine of executive privilege was so