Espy concerns a grand jury subpoena for White House documents that arose out of a criminal investigation into former Secretary of Agriculture Mike Espy.
In siding largely, but not entirely, with the White House, the D. Circuit clarified several features about executive privilege. As the court explained, the latter privilege covers most internal decisionmaking within the executive branch, but is far easier to overcome. Seven years later, a different D. The government asserted both the presidential communications privilege and the deliberative process privilege as grounds for withholding disclosure under FOIA.
But the court of appeals rejected the argument that the documents were protected by the presidential communications privilege. Between them, Espy and Judicial Watch yield several conclusions about the scope of the presidential communications privilege under D. Circuit case law. First, the privilege may be asserted even as to communications in which the president is not personally involved.
Although district court decisions do not have the same precedential force as rulings by the Supreme Court and courts of appeals, one ruling from the U. District Court for the District of Columbia subsequent to the D. In House Committee on the Judiciary v. Both involve core functions of a co-equal branch of the federal government, and for the reasons identified in Nixon , the President may only be entitled to a presumptive, rather than an absolute, privilege here.
And it is certainly the case that if the President is entitled only to a presumptive privilege, his close advisors cannot hold the superior card of absolute immunity. The district court did not reach the merits of the privilege claim in Miers. Much remains unanswered by the courts, but the guidance from Espy , Judicial Watch and Miers should go a long way toward separating colorable privilege claims from those that are patently meritless. In its ruling in United States v.
Circuit refused to resolve a dispute between the DOJ and the House of Representatives arising out of a subpoena the House had issued to a private company for records that DOJ claimed were protected by executive privilege. As Judge Harold Leventhal wrote:. The framers … relied, we believe, on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system.
Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Nixon forever changed how Americans view executive privilege. His use of the power led many Americans to believe that all uses are for the same undisclosed reasons. Bush to use the privilege sparingly—especially Ford, who had to deal with many congressmen using the Nixon saga as leverage to make the White House as transparent as possible.
Reagan was so cautious that he did not use the privilege during the investigation of the Iran-Contra affair. There would not be another controversy regarding executive privilege until During these investigations, President Clinton used executive privilege 14 times , which included protecting First Lady Hillary Clinton from testifying during the Whitewater hearings and protecting himself from testifying in both cases.
His executive privilege claims, as well as his attorney-client claims in the Lewinsky investigation, were challenged in federal court.
Citing U. This ruling was not appealed to the Supreme Court, as the White House sought to avoid a headline-grabbing legal loss. Clinton was eventually impeached by the House but not convicted the Senate, allowing him to finish his second term. The Bureau of Alcohol, Tobacco, and Firearms had run an operation to sell guns to Mexico, in the hope that they could track those weapons to major drug cartels and apprehend some of their members.
The guns were not able to be tracked and one was eventually used in the killing of a border patrol agent. Representative Darrell Issa and Senator Chuck Grassley held hearings to determine what went wrong during the mission. Obama and Attorney General Eric Holder both said they did not know about it until a few weeks prior to the killing and did not authorize it.
Congress and the Department of Justice ended up in a standoff over the sharing of 1, documents, leading Obama to assert executive privilege in order to keep them private. In retaliation, Congress voted to cite Holder for contempt of Congress. Nixon , which came about when he claimed executive privilege during the Watergate investigation to get out of a grand jury subpoena and avoid handing over recordings of his conversations in the White House.
What is the limit to its use and how will it be enforced are questions that continue to be debated. Many scholars worried about that problem as soon as U. So presidents have been very reluctant to assert executive privilege, and then the courts have tried to duck the issue, and they can. But the way things are going now, it looks not likely to be duckable — although you never know.
Write to Olivia B. Waxman at olivia. Here's the History of That Presidential Power. By Olivia B. Related Stories.
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