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.

Of the various executive privileges, the Deliberative Process Privilege is the one most frequently asserted.1 The purpose underlying the Privilege is to protect the “'quality of agency decisions’ by allowing government officials freedom to debate alternative approaches in private.” 2 But the Deliberative Process Privilege applies only to those documents and communications that are predecisional, meaning they are created prior to the agency reaching its final decision, and deliberative, meaning they relate to the thought process of Executive officials and are not purely factual.3

U.S. App. LEXIS 40001, 5–6 (D.C. Cir. Dec. 21, 2020) ( “The privilege covers information that is both ‘predecisional’ and ‘deliberative.’ Documents are predecisional if they were ‘generated before the adoption of an agency policy,’ and deliberative if they ‘reflect[ ] the give-and-take of the consultative process.’” ) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The Privilege does not protect entire documents. Rather, the Executive Branch must disclose non-privileged factual information that can be reasonably segregated from privileged information in the requested documents. And like the other executive privileges, the Deliberative Process Privilege is overcome by an adequate showing of need.4

The idea of the Deliberative Process Privilege was developed under the Freedom of Information Act (FOIA) to provide limited protection for communications and documents evidencing the predecisional considerations of agency officials.5 Over time, the Executive Branch has melded this deliberative process idea with the recognized confidentiality interest in the President’s communications with close advisers, such that the privilege would extend to any policy deliberations or communications within the Executive Branch in which the President may have an interest.

The result has been a presumption by the Executive, though regularly contested by Congress, that its predecisional deliberations are beyond the scope of congressional demand. For instance, Attorney General William French Smith advised President Ronald Reagan that “Congress will have a legitimate need to know the preliminary positions taken by Executive Branch officials during internal deliberations only in the rarest of circumstances.” 6 According to this view, the need for the Executive to prevent disclosure of its deliberations is at its apex when Congress attempts to discover information about ongoing policymaking within the Executive Branch. In that case, the Executive has argued, the deliberative process exemption serves as an important boundary marking the separation of powers. When congressional oversight “is used as a means of participating directly in an ongoing process of decisionmaking within the Executive Branch, it oversteps the bounds of the proper legislative function.” 7

The legal justifications asserted by the Barack Obama Administration for withholding documents from Congress during a House probe into Operation Fast and Furious appear to reflect a heavy reliance on the Deliberative Process Privilege. In a letter to the President asking him to invoke executive privilege over the subpoenaed documents, Attorney General Eric Holder noted that “Presidents have repeatedly asserted executive privilege to protect confidential Executive Branch deliberative materials from congressional subpoena.” 8 The Attorney General went on to argue that “[i]t is well established that ‘the doctrine of executive privilege . . . encompasses Executive Branch deliberative communications.’” 9 The dispute ultimately reached the courts, and although the litigation was eventually settled, a federal district court initially held that after “balancing the competing interests” at stake, in this instance the Deliberative Process Privilege must yield to Congress’s “legitimate need” for the documents.10

Similar to Deliberative Process Privilege, the Law Enforcement Privilege operates to protect information, the disclosure of which by the Executive Branch would have a chilling effect on conducting “the candid and independent analysis essential to just and effective law enforcement.” 11

Footnotes

1

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

2

Id. at 737 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)).

3

See Assassination Archives & Rsch. Ctr. v. CIA, No.

18–5280, 2020

U.S. App. LEXIS 40001, 5–6 (D.C. Cir. Dec. 21, 2020) ( “The privilege covers information that is both ‘predecisional’ and ‘deliberative.’ Documents are predecisional if they were ‘generated before the adoption of an agency policy,’ and deliberative if they ‘reflect[ ] the give-and-take of the consultative process.’” ) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

4

See Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112–14 (D.D.C. 2016) (finding that a congressional committee’s need for deliberative materials outweighed the Executive Branch’s interest in confidentiality).

5

See EPA v. Mink, 410 U.S. 73, 85–90 (1973).

6

Letter from Attorney General William French Smith to President Reagan (October 31, 1981), reprinted in 5 Op. O.L.C. 27, 31 (1981) [hereinafter Smith Letter/Watt]; accord Memorandum to General Counsels’ Consultative Group Re: Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 192 (1989) ( “Congress will seldom have any legitimate legislative interest in knowing the precise predecisional positions and statements of particular Executive Branch officials.” ) [hereinafter Barr Memo]; Letter from Assistant Attorney General Robert Rabkin, Office of Legislative Affairs, DOJ, to Honorable John Linder, Chairman House Subcommittee on Rules and Organization of the House, Committee on Rules (June 27, 2000), at 5–6 ( “[T]he Department has a broad confidentiality interest in matters that reflect its internal deliberative process. In particular, we have sought to ensure that all law enforcement and litigation decisions are products of open, frank, and independent assessments of the law and facts—uninhibited by political and improper influences that may be present outside the department. We have long been concerned about the chilling effect that would ripple throughout government if prosecutors, policy advisors at all levels and line attorneys believed that their honest opinion—be it ‘good’ or ‘bad'—may be the topic of debate in Congressional hearings or floor debates. These include assessments of evidence and law, candid advice on strength and weaknesses of legal arguments, and recommendations to take or not to take legal action against individuals and corporate entities.” ); see also Smith Letter/Watt, supra, at 30 ( “congressional oversight interest will support a demand for predecisional, deliberative documents in the possession of the Executive Branch only in the most unusual circumstances” ).

7

Smith Letter/Watt supra note 6at 30; see also Executive Privilege: The Withholding of Information by the Executive: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92nd Cong. 424 (1971) (Statement of Assistant Attorney General William H. Rehnquist) ( “The notion that the advisors whom he has chosen should bear some sort of a hybrid responsibility to opinion makers outside of the government, which notion in practice would inevitably have the effect of diluting their responsibility to him, is entirely inconsistent with our tripartite systems of government. The President is entitled to undivided and faithful advice from his subordinates, just as Senators and Representatives are entitled to the same sort of advice from their legislative and administrative assistants, and judges to the same sort of advice from their law clerks.” ).

8

Letter to President Barack Obama from Eric Holder, Attorney General (June 19, 2012), at 3.

9

Id.

10

Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112, 115 (D.D.C. 2016).

11

Letter from Assistant Attorney General Robert Rabkin, Office of Legislative Affairs, DOJ, to Honorable John Linder, Chairman House Subcommittee on Rules and Organization of the House, Committee on Rules (June 27, 2000), at 5–6 ( “The foregoing concerns apply with special force to Congressional requests for prosecution and declination memoranda and similar documents. These are extremely sensitive law enforcement materials. The Department’s attorneys are asked to render unbiased, professional judgments about the merits of potential criminal and civil law enforcement cases. If their deliberative documents were made subject to Congressional challenge and scrutiny, we would face a grave danger that they would be chilled from providing the candid and independent analysis essential to just and effective law enforcement or just as troubling, that our assessments of the strengths and weaknesses of evidence of the law, before they are presented in court. That may result in an unfair advantage to those who seek public funds and deprive the taxpayers of confidential representation enjoyed by other litigants.” ). See also Protective Assertion of Executive Privilege Over Unredacted Mueller Report and Related Investigative Files, 43 Op. O.L.C. 374 (2019).