ACSBlog: The Blog of the American Constitution Society

Earlier today, Congress issued its first subpoenas in its ongoing investigation of nine U.S. Attorney firings which are directed at officials working in the White House.  The White House has promised to assert Executive Privilege in order to frustrate those subpoenas.

One open question in this controversy is whether President Bush was personally involved in the decision making process surrounding the U.S. Attorney firings.  Should the White House eventually assert Executive Privilege, exactly how they make the assertion could provide an answer to this question.

As the D.C. Circuit explained in In re Sealed Case, an assertion of "Executive Privilege" may take two forms:

The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege; it allows the government to withhold documents and other materials that would reveal "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. . . ."   Two requirements are essential to the deliberative process privilege: the material must be predecisional and it must be deliberative. Both requirements stem from the privilege's "ultimate purpose[, which] ... is to prevent injury to the quality of agency decisions" by allowing government officials freedom to debate alternative approaches in private. The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations. . . .

Although executive privilege in general is no stranger to the courtroom, one form of the executive privilege is invoked only rarely and that is the privilege to preserve the confidentiality of presidential communications.

(citations omitted).  So the White House may assert one of two different privileges, the "deliberative process privilege," which protects policy discussions among Presidential advisors, but only if those discussions occurred prior to a final decision to implement a new policy, and the "presidential communications privilege," which protects any communication made with the President "in the process of shaping policies and making decisions."

As Sealed Case explains, the presidential communications privilege--the privilege which applies only if the President was personally involved in the decision making process--is the stronger of these two privileges:

While the presidential communications privilege and the deliberative process privilege are closely affiliated, the two privileges are distinct and have different scopes. Both are executive privileges designed to protect executive branch decisionmaking, but one applies to decisionmaking of executive officials generally, the other specifically to decisionmaking of the President. The presidential privilege is rooted in constitutional separation of powers principles and the President's unique constitutional role; the deliberative process privilege is primarily a common law privilege. Consequently, congressional or judicial negation of the presidential communications privilege is subject to greater scrutiny than denial of the deliberative privilege.

(citation omitted).  As this presidential communications privilege is stronger--less likely to be overcome by a Congressional subpoena--the White House may wish to assert it in order to increase the likelihood that Congress will not be able to continue its oversight into the Executive Office of the President.  Yet, since this stronger privilege may only be asserted with respect to communications made personally to the President of the United States, White House counsel may be forced to choose between relying on the weaker deliberative process privilege, or stating that the President was personally involved the U.S. Attorney firings.