Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

There is not a single “executive privilege.” Instead, a suite of distinct privileges exist, each of different—though sometimes overlapping—scope.1 The political branches, in support of their often competing interests and priorities, have adopted somewhat divergent views on these different component privileges. Whereas Congress has generally interpreted executive privilege narrowly, limiting its application to the types of presidential, national security, and diplomatic communications referenced by judicial decisions,2 the Executive Branch has historically viewed executive privilege more broadly, providing protections to different categories of documents and communications that implicate Executive Branch confidentiality interests.3 Under the Executive Branch’s interpretation, these privileges include

• the State Secrets Privilege, which protects certain military, diplomatic, and national security information;4

• the Presidential Communications Privilege, which generally protects confidential communications between the President and his advisers that relate to presidential decisionmaking, as well as a certain subset of communications not involving the President but that are still made for purposes of advising the President;5

• the Deliberative Process Privilege, which protects pre-decisional and deliberative communications within Executive Branch agencies;6 and

• the Law Enforcement Privilege, which protects the contents of open (and sometimes closed) law enforcement files, including communications related to investigative and prosecutorial decisionmaking.7

The Executive Branch has tended to consolidate these various privileges into one “executive privilege,” particularly when responding to congressional investigative requests.8 Congressional committees, on the other hand, have typically distinguished among the different individual privileges.9

The executive privileges may appropriately be treated as distinct, not only because of the different communications they protect, but also because the privileges appear to arise from different sources of law, with some more firmly established in judicial precedent than others. In short, the different privileges apply with different strengths and, in the congressional context, are balanced against Congress’s Article I powers differently. For example, courts have “traditionally shown the utmost deference” to presidential claims of a need to protect military or diplomatic secrets.10 The President’s more generalized interest in the confidentiality of his other communications, though arising implicitly from the Constitution, has not been “extended this high degree of deference.” 11 Because the other privileges have been given less weight, they are assessed differently in the face of an exercise of Congress’s investigative powers. For example, when compared to the Presidential Communications Privilege, the Deliberative Process Privilege is more easily overcome by Congress and “disappears altogether when there is any reason to believe government misconduct occurred.” 12 Its legal source also appears to be different from the Presidential Communications Privilege, as it arises “primarily” from the common law,13 but may have a “constitutional dimension.” 14 Least potent are those executive privileges that arise purely from the common law, which have generally been viewed, at least by Congress, as legally insufficient to justify noncompliance with a congressional subpoena.15

Footnotes

1

In re Sealed Case, 121 F.3d at 736 (noting that “executive officials have claimed a variety of privileges to resist disclosure of information” ). See also John E. Bies, Primer on Executive Privilege and the Executive Branch Approach to Congressional Oversight, Lawfare (June 16, 2017), https://www.lawfareblog.com/primer-executive-privilege-and-executive-branch-approach-congressional-oversight ( “[A] review of Executive Branch practice identifies a number of categories of information that the Executive Branch, at least, believes may be protected by an invocation of the privilege.” ).

2

See Rep. on President Bush’s Assertion of Executive Privilege in Response to the Committee Subpoena to Attorney General Michael B. Mukaskey, H. Comm. on Oversight and Gov’t Reform, 110th Cong. 8 (Comm. Print 2008) (rejecting an executive privilege claim on the grounds that “[t]he Attorney General did not cite a single judicial decision recognizing this alleged privilege” ); H.R. Rep. No. 105–728, at 16 n. 43 (1998) ( “As the D.C. Circuit has recently held, the doctrine of executive privilege which arises from the constitutional separation of powers applies only to decisionmaking of the President. Since the subject of the Committee’s subpoena is not one that does (or legally could) involve Presidential decisionmaking, no constitutional privilege could be invoked here.” ) (citations omitted)).

3

See Assertion of Executive Privilege Over Documents Generated in Response to Congressional Investigation into Operation Fast and Furious, 8 Op. O.L.C. 101, 116 (2012) ( “The scope of executive privilege includes several related areas in which confidentiality within the Executive Branch is necessary for the effective execution of the laws.” ).

4

Id. at 116–17.

5

Id. at 116.

6

See Assertion of Executive Privilege Over Documents Generated in Response to Congressional Investigation into Operation Fast and Furious, 36 Op. O.L.C. 1 (2012).

7

See Protective Assertion of Executive Privilege Over Unredacted Mueller Report and Related Investigative Files, 43 Op. O.L.C. 374 (2019).

8

See 8 Op. O.L.C. 101, 116 (1984) (reasoning that “[t]he scope of executive privilege includes several related areas” ); 13 Op. O.L.C. 153, 154 (1989) (reasoning that “the Executive Branch’s interest in keeping the information confidential” is “usually discussed in terms of ‘executive privilege’” ).

9

See , Rep. on President Bush’s Assertion of Executive Privilege in Response to the Committee Subpoena to Attorney General Michael B. Mukaskey H. Comm. on Oversight and Gov’t Reform, 110th Cong. 8 (Comm. Print 2008) ( “The Attorney General’s argument that the subpoena implicates the ‘law enforcement component’ of executive privilege is equally flawed. There is no basis to support the proposition that a Law Enforcement Privilege, particularly one applied to closed investigations, can shield from congressional scrutiny information that is important for addressing congressional oversight concerns. The Attorney General did not cite a single judicial decision recognizing this alleged privilege.” ); H.R. Rep. No. 105–728, at 16 n. 43 (1998) ( “As the D.C. Circuit has recently held, the doctrine of executive privilege which arises from the constitutional separation of powers applies only to decisionmaking of the President. Since the subject of the Committee’s subpoena is not one that does (or legally could) involve Presidential decisionmaking, no constitutional privilege could be invoked here.” ) (citations omitted).

10

United States v. Nixon, 418 U.S. 683, 710 (1974).

11

Id. at 711.

12

In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997). Given its broad scope, the Deliberative Process Privilege is “the most frequent form of executive privilege raised.” Id. at 737.

13

In In re Sealed Case, the D.C. Circuit determined that “the deliberative process privilege is primarily a common law privilege,” but that “[s]ome aspects of the privilege, for example the protection accorded the mental processes of agency officials, have roots in the constitutional separation of powers.” 121 F.3d at 745, 737 n.4.

14

Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 104 (D.D.C. 2016). The scope and source of the Law Enforcement Privilege is unclear, particularly when asserted in the context of congressional investigations where committees have voiced consistent objections to its use. Congress has previously viewed the Executive Branch’s position on the confidentiality of law enforcement information as a nondisclosure “policy” rather than a constitutionally based privilege. See Rep. on President Bush’s Assertion of Executive Privilege in Response to the Committee Subpoena to Attorney General Michael B. Mukaskey, H. Comm. on Oversight and Gov’t Reform, 110th Cong. 8 (Comm. Print 2008).

15

The Supreme Court recently stated in dicta that the recipients of a congressional subpoena “have long been understood to retain common law . . . privileges with respect to certain materials. . . .” Trump v. Mazars USA, LLP, No. 19-760, slip op. at 12 (U.S. July 9, 2020). This statement is in tension with the congressional practice of treating common law privileges as discretionary and has been subject to some criticism. See Christopher M. Davis, Todd Garvey, Ben Wilhelm, et al. Cong. Rsch. Serv., RL30240, Congressional Oversight Manual, at 62–63 (2022).