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What Courts do with Executive Privilege Claims

By Gbemende Johnson, Hamilton College

“Because Congress requires this material in order to perform our constitutionally-mandated responsibilities, I will issue a subpoena for the full report and the underlying materials.” This was the response of House Judiciary Chairman Jerrold Nadler (D-NY) after receiving the redacted 448-page Report on the Investigation Into Russian Interference in the 2016 Presidential Election.The battle over the Mueller Report is just one example of conflicts between Congress and the executive branch over executive privilege, where agency officials claim they can withhold documents. Many disputes land in federal court. The Obama Administration Department of Justice spent years in court defending its claim of executive privilege over documents related to the ATF’s “Fast and Furious” gunwalking operation. Federal courts have proven less likely to let cabinet level agencies like the Department of Justice withhold documents than they are with independent agencies like the U.S, Securities and Exchange Commission.

When agencies claim executive privilege to withhold documents, courts can end up deciding the dispute. They have two legal frameworks: the Freedom of Information Act (FOIA) and ‘deliberative process privilege.’ Agency officials more frequently claim protection under deliberative process,[i]which protects information exchanged before agencies make final decisions.[ii]In my forthcoming article, “Adjudicating Executive Privilege: Federal Administrative Agencies and Deliberative Process Privilege Claims in U.S. District Courts,” I argue that the law is flexible, allowing judges to bring to bear concerns about the type of agency, independent or cabinet-level, and the mission of the agency. Under the iconic case U.S. v. Nixon[iii], the United States Supreme Court judged the president’s claim to privileged communications with his aides. Now, the news mentions threats to go to the Supreme Court about privilege. However, the district courts are the front line in judging administrative agencies’ claims to privilege.

In addition to FOIA litigation, administrative agencies claim that they have privilege to their ‘deliberative process’ when they are sued. In over 200 districts cases, federal district courts have proven more likely to defer to independent agencies than to cabinet agencies. Cabinet agencies are the president’s agencies, like the Department of Justice.[iv]In the dispute over documents from “Fast and Furious,” Representative Darrell Issa’s (R-CA) investigatory panel argued, “the President and the Attorney General attempted to extend the scope of the Executive Privilege well beyond its historical boundaries to avoid disclosing documents that embarrass or otherwise implicate senior Obama Administration officials.” While not yet claiming executive privilege over the release of the Mueller report, Attorney General Barr has been of accused of acting “more like a loyal presidential aide than the leader of an agency charged with exercising independent judgment.” When people requesting documents can plausibly claim that decisions to withhold information are motivated by partisanship, judges look more closely at the decisions.

The redacted Mueller report brings executive privilege into the news again. U.S. federal courts shape executive branch control of information. District courts can be reluctant to tell agencies what they must share. However, the ordinary cases in the district courts and the more spectacular newsworthy claims at the heart of presidents’ legal accountability suggest cabinet officials may end up being told they have to share documents.
Narayan, Shilpa. 2008. “Proper Assertion of the Deliberative Process Privilege: The Agency 

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