President Trump seems to have abandoned the idea of invoking “executive privilege” to prevent former FBI director James Comey from testifying before a Senate committee Thursday. But the popping of that trial balloon has less to do with the broader concept of executive privilege and more to do with the specifics of the current situation.
Presidency pro tip: If you want to stop your FBI director from testifying about your conversations with him, don’t fire him first.
Executive privilege is about information. Under the separation of powers, presidents have long claimed they should be able to keep certain communications private, when disclosing them would undermine core executive branch functions and/or decision-making. National security is a key substantive component here, but the argument is generally broader. “It is essential to efficient and effective administration that employees of the Executive Branch be completely candid in advising each other on official matters,” President Eisenhower said in 1954; thus he deemed it “not in the public interest that any of their conversations or communications… concerning such advice be disclosed.”
Ike’s attorney general, William P. Rogers, came up with the phrase “executive privilege” to justify the administration’s refusal to pass along information to Congress. But if the term was new, the idea was not. As Mark Rozell points out in his indispensable book-length treatment of the topic, even George Washington’s administration concluded it had the right to withhold from Congress information about military operations and diplomatic negotiations. Over time presidents claimed the right to determine what was, in James Polk’s phrase, “compatible with the public interest to communicate.”
Here as elsewhere, though, Richard Nixon pushed the doctrine to the breaking point. In March 1973, he claimed that the privilege could be claimed on behalf of former as well as current staff; in May of that year he applied it not just to information Congress requested but also to information subpoenaed by grand juries. He also tried to extend it to “all documents, produced or received by the president or any member of the White House staff in connection with his official duties.”
In Senate testimony in April 1973, Attorney General Richard Kleindienst argued that the president could direct any member of the executive branch to refuse information in response to congressional request. Senator Ed Muskie (D-Maine) couldn’t quite believe it: “the Congress, in your view, has no power to command the production of testimony or information by anyone in the executive branch under any circumstances?” None, said Kleindienst, if the president says so. Every employee? Muskie asked. Right, said Kleindienst: “Your power to get what the president knows is in the president’s hands.”
That doctrine was put to the test in U.S. v Nixon, in which special prosecutor Leon Jaworski sought to force the president to turn over recordings of White House conversations — among them, the “smoking gun” tape that doomed Nixon’s presidency. Jaworski argued that the conversations were key evidence needed to ensure a fair trial for the Nixon aides then being prosecuted. Nixon responded that prosecution was an executive branch decision, and “the courts are … powerless to determine what material within the executive branch must be used in the case.” Who could make that decision? Conveniently, the head of the executive branch — himself.
More broadly, Nixon argued, executive privilege was crucial to the presidency’s functioning. As he had put it in an August 1973 speech about Watergate, “it is absolutely essential, if the president is to be able to do his job as the country expects, that he be able to talk openly and candidly with his advisers about issues and individuals.”
The Supreme Court agreed — to a point. Chief Justice Warren Burger wrote that there is a “valid need for protection of communications between high government officials and those who advise and assist them,” marking the first time executive privilege had been judicially endorsed as constitutional doctrine. However, Burger went on,
… neither the separation of powers, nor the need for confidentiality… can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances…. [Allowing] privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.
In short: executive privilege did exist. But it was not absolute. And presidents did not get to make the final call.
But the Nixon decision was mostly about the judiciary’s right to get information in a criminal proceeding. What about legislators’ abilities to get documents, at least outside of impeachment? That tended to vary with political circumstances. For awhile after Nixon’s resignation, “executive privilege” smelled almost criminal, and Nixon’s successors came up with various euphemisms — “pre-decisional process privilege,” “attorney work product,” “internal departmental deliberations” — to make the doctrine smell sweet by other names.
The upshot is, as Obama administration official Eric Columbus writes, “a notorious Gordian knot.” Still, the judiciary remains suspicious of unfettered invocations of privilege. In a Clinton-era case involving an independent counsel who was investigating Agriculture Secretary Mike Espy, the D.C. Circuit Court ruling divided executive privilege into two parts, a “deliberative process privilege” that “disappears altogether when there is any reason to believe government misconduct has occurred,” and a “presidential communications privilege,” far harder to overturn.
Even the latter, though, was limited to communications linked to the president’s constitutional functions. And when the George W. Bush administration argued that the president’s “immediate advisers are absolutely immune from testimonial compulsion by a congressional committee,” the D.C. District Court was not impressed, saying the claim “is entirely unsupported by existing case law.” (But presidents keep trying: Obama’s Office of Legal Counsel reverted to the Bush position in 2014, earning a House committee resolution pointing out the Bush case and condemning the administration’s “contumacious conduct.”)
How does Comey’s testimony fit in? In theory, the stronger “presidential communications privilege” could have applied. But Comey is no longer a government official; Trump can’t fire him twice. And unlike the officials in the Bush and Obama cases above, Comey wants to testify. To prevent a willing witness from appearing, the administration would have to seek a restraining order. Would a court really grant that? After all, grand claims about the importance of confidentiality are hard to reconcile with Trump’s willingness to speak publicly about those very same conversations.
So this case may wind up telling us little new about the case law of executive privilege. But then the doctrine is more about politics than law anyway — and this week might tell us quite a lot about the political corner into which Trump has painted himself.