Applicability of Executive Privilege to Deliberations Regarding Assertion of Privilege ( 1996 )

Applicability of Executive Privilege to Deliberations Regarding
Assertion of Privilege
Docum ents reflecting and constituting deliberative communications within the White House Counsel’s
Office and between that Office and the Department o f Justice relating to advice and recommenda­
tions to the President on the assertion o f executive privilege are themselves a proper subject of
a claim o f executive privilege.
September 11, 1996
L e t t e r O p in io n f o r t h e C o u n s e l t o t h e P r e s i d e n t
Y o u have asked whether certain predecisional deliberative documents in the pos­
session of the White House Counsel’s Office may properly be the subject of an
assertion of executive privilege.
These documents reflect and constitute deliberative communications within the
White House Counsel’s Office and between that Office and the Department of
Justice relating to the advice and recommendations presented to the President ear­
lier this year with respect to the assertion of executive privilege in response to
a subpoena from the House Committee on Government Reform and Oversight.
We believe that the deliberative process concerning the President’s assertion of
his constitutional privilege is at the heart o f the interests protected by the privi­
lege — not only because of the heightened confidentiality interests regarding such
deliberations, but also because of the severe separation of powers concerns raised
by a congressional intrusion on that process.
Based on our review of these documents, we conclude that they are clearly
protected by executive privilege and may properly be the subject of an executive
privilege claim. The Supreme Court has expressly (and unanimously) recognized
that the Constitution gives the President the power to protect the confidentiality
of White House deliberations. This power is rooted in the “ need for protection
of communications between high Government officials and those who advise and
assist them in the performance of their manifold duties.” United States v. Nixon,
418 U.S. 683, 705 (1974). “ A President and those who assist him must be free
to explore alternatives in the process of shaping policies and making decisions
and to do so in a way many would be unwilling to express except privately.”
Id. at 708. The Court has also stressed the separation of powers nature of executive
privilege, stating that “ [t]he privilege is fundamental to the operation of Govern­
ment and inextricably rooted in the separation of powers under the Constitution.”
Id.324
Applicability o f Executive Privilege to Deliberations Regarding Assertion o f Privilege
You have not inquired concerning whether executive privilege could properly
be asserted in the context of any specific congressional demand for these docu­
ments.
CHRISTOPHER H. SCHROEDER
Acting Assistant Attorney General
Office o f Legal Counsel
325