Fact Sheet on Executive Privilege

From Nancy Pelosi's the Gavel Blog:

Today, House and Senate Judiciary Chairmen John Conyers and Patrick Leahy sent a letter to White House Counsel Fred Fielding, responding to the President’s executive privilege assertion over documents relating to the US Attorney investigation. The two reiterated their concern that the president’s assertion was unprecedented and over-reaching. They also demanded the White House “immediately provide us with the specific bases for your claims regarding each document withheld via a privilege log…and a copy of any explicit determination by the President with respect to the assertion of privilege.”


See Chairman Conyers’ statement yesterday

See the initial announcement of the subpoeanas



The Committees also released the following fact sheet on Executive Privilege:

The White House’s Broad Claims of Executive Privilege Are Not Supported by Law
Background: President Bush has asserted executive privilege in response to two document subpoenas from the Senate and House Judiciary Committees. The subpoenas requested categories of documents highly relevant to the unprecedented and improper firing of nine United States Attorneys and the politicization of the Department of Justice. The executive privilege is not a broad and sweeping authority the President can hide behind because he does not want to cooperate with congressional oversight — it should not prevent Congress from examining White House documents vitally important to its investigation. While courts have recognized a privilege based in the Constitution, that privilege is not absolute and must be balanced with other constitutional interests, including Congress’s oversight powers.

Courts And Legal Experts Agree Executive Privilege Is Limited:

· The Supreme Court held that the executive privilege is not absolute in United States v. Nixon, 418 U.S. 683, 706 (1974), writing that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege … .” The DC Circuit elaborated that “the privilege is qualified, not absolute, and can be overcome by an adequate showing of need.” In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997).

· The District of Columbia Circuit found that even in the area of national security, there was no absolute executive privilege against congressional demands for information: “The executive would have it that the Constitution confers on the executive absolute discretion in the area of national security. This does not stand up. While the Constitution assigns to the President a number of powers relating to national security, … it confers upon Congress other powers equally inseparable from the national security… .” United States v. AT&T, 567 F.2d121, 128 (D.C. Cir. 1977). [The documents requested by the House and Senate Committees do not implicate any national security concerns.]

· The Congressional Research Service emphasizes the limited nature of the executive privilege. “Executive privilege is not an absolute. It is a qualified privilege and is balanced against the constitutional needs and obligations of other branches.” Congressional Research Service, October 21, 2005.

The Documents Requested By Committees Do Not Fit Into Narrow Executive Privilege:

· The privilege covers communications related to presidential decision-making, which is not at issue here. The DC Circuit has found that the presidential communications privilege applies to communications “intimately connected to his presidential decision-making.” In re Sealed Case, 121 F.3d at 753. However, numerous witnesses before both House and Senate Committees have testified that the President did not decide which U.S. Attorneys should be fired.

· The privilege, even if it does apply, is overcome by real public need — as exists here. Executive privilege is overcome where the subpoenaed materials likely contain important evidence and where that evidence is not available elsewhere. In re Sealed Case, 121 F.3d at 755. Again and again, the evidence the Committee has obtained in this investigation shows significant involvement by Sara Taylor, Harriet Miers, and others in the White House, but the White House has shut down all avenues of obtaining information about that extremely important involvement.

The broader deliberative process privilege does not apply. That privilege does not apply when there is reason to believe government misconduct occurred, as has been clearly established in this matter, and does not apply to full documents – only to specific and relevant passages. Several of the high-ranking officials at the Department of Justice have resigned since this investigation began. In re Sealed Case, 121 F.3d at 745.

The White House’s Claims Of Privilege Are Sweeping And Overly Broad:

· The non-partisan Congressional Research Service has been critical of this White House’s sweeping characterizations of executive privilege. “The current Bush Administration … has articulated a legal view of the breadth and reach of presidential constitutional prerogatives that, if applied to information and documents often sought by congressional committees, would stymie such inquiries.” CRS further notes that the Department of Justice’s “assertions of these broad notions of presidential prerogatives are unaccompanied by any authoritative judicial citations.” CRS Congressional Oversight Manual, January 3, 2007, at 45.

· The White House has not sought in good faith to determine where privilege truly does and does not apply. The White House Counsel asserted privilege and declared that “therefore the White House will not be making any production in response to these subpoenas for documents.” June 28, 2007 Letter from Fred Fielding to Chairmen Leahy and Conyers. A serious assertion of privilege would include a serious effort to determine which documents, and which parts of those documents, are covered by any privilege that may apply; White House officials have provided no such comprehensive review.

The White House Has Not Sought Accommodation:

· Most disputes between Congress and the Executive about access to documents and information are resolved through compromise. CRS Congressional Oversight Manual at 39.

· The White House in this case has made one unacceptable “take it or leave it” offer of extremely limited access to witnesses, off-the-record interviews, without transcripts, and a small number of documents. The White House has refused to negotiate further. The Senate and House Judiciary Committees have sought the kind of compromise solutions which generally accompany this type of investigation, but have been consistently rebuffed by the White House. Even the Department of Justice has made attempts to respond to congressional inquiries.