Privilege a presidential tradition

Call it a right of confidentiality; the executive privilege is a claim by the president (or other high executive branch official) that s/he need not answer a request for government or personal communications on the ground that the revelation would hamper government operations and decision-making. While not explicitly in the Constitution, executive privilege has been used by every U.S. president since George Washington in 1792. The most infamous perhaps was during Watergate, when it became clear the privilege does not extend to criminal investigations.

Nearing the end of his four-year term, President Obama has just invoked it for the first time. That puts him on par with George H.W. Bush, who also invoked it only once. Compare their two to the other 23 times executive privilege has been asserted since 1980: G.W. Bush 6, Clinton 14, and Reagan 3.

Ruled by courts as implicit in the Separation of Powers doctrine, which assigns powers and rights to the three branches, the right has evolved one challenge at a time. Congress or the judiciary asks for information - in this case, a House subpoena for an internal memo regarding a failed law enforcement operation; the executive asserts the privilege not to respond; then Congress considers a contempt vote. Should such a vote carry, as it did in the House a few days ago, the next step is a possible lawsuit to enforce the subpoena/request by a federal judge's override, and a chance for courts to further clarify the limits of executive privilege.

Prior cases both allowed and disallowed the privilege long before it got its name in the 1950s. During Eisenhower's presidency, courts defined privilege as extending to the military and national security, and to internal communications among executive branch employees (a protection against Sen. McCarthy's bullying tactics). In general, the privilege asserted must bear on a core power of the presidency (e.g., law enforcement); must have come from the president or a close adviser (e.g., deputy attorney general); and can't contain information so unique that investigators can't figure out from any other sources. Item three is obviously the kicker.

In Rep. Darrell Issa's letter to the president urging compliance, he suggests the questions to which they want answers may prove or disprove a lie, specifically what was known and when. The White House response is that internal deliberations are a clearly protected area of privilege, a position impliedly supported by the Justice Department, which indicated it won't prosecute the AG.

A puzzling aspect to this is why the House didn't take up the president on his offer to inspect other information and documents (about 7,600 traditionally protected, now handed over) before their contempt vote. More investigation may have shed some light, or not, and still left them the contempt option. Is there an element of election year politicking on both sides of this story?

In 1977, a federal appeals court counseled that in these cases "each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation." Reasonable accommodation in politics; what a hopeful concept.

Sholeh Patrick, J. D. is a columnist for the Hagadone News Network. Contact her at [email protected].