Essay, Research Paper: The Constitutional Legitimacy Of Executive Privilege

The Constitutional Legitimacy of Executive Privilege
In the Context of
United States v. Nixon
The perennial power struggle between the executive, legislative and judicial branches of the federal government is firmly entrenched in the political system. Beginning with the 2nd U.S. House of Representatives' forceful request of Pres. Washington's personal papers pertaining to what is commonly referred to as Jay's Treaty and his prompt refusal, the executive has struggled with what some scholars would consider usurpations of authority and others, a necessary facet of Congress' investigatory powers. Similarly, Presidents have invoked their dubious privilege when called upon by the federal judiciary to procure certain information or respond to certain charges.
Inherent in the executive power vested in the President, as stipulated Article II, is the authority to manage intra-branch matters and maintain a level of confidentiality he may deem necessary. This authority, or privilege, is considered by many to be derivative of the doctrine of a separation of powers and a necessary facet of a strong and viable executive.
The ultimate authority over all executive branch decisions is, as directed by the Constitution, the President who, delegation or waivers notwithstanding, enjoys discretion over which confidential executive materials may be made available to other executive officers. The question, therefore, is whether or not a court or other branch of government can involve itself in intra-executive branch issues. James Madison stood staunchly beside the separation of powers, writing "[I]f it be essential to the preservation of liberty that the Legislative, Executive and Judiciary powers be separate, it is essential to the maintenance of the separation, that they should be independent of each other." Executive privilege, therefore, derives its constitutional authority from this sentiment, supporting the Court's 1879 opinion in the Sinking Fund Cases (99 U.S. 700) which viewed usurpations of executive power by the other branches as a "danger" to the Constitution. In O'Donoghue v. United States (289 U.S. 516), 1933, Justice Sutherland, delivering the majority opinion, spoke uncharacteristically harshly of the "coercive influence" exerted by one branch over another. Similarly, in Humphrey's Executor v. United States (295 U.S. 602), 1935, the Court ruled the independent functioning of each branch a "fundamental necessity." The President, ostensibly, enjoys, or should enjoy, the last word on any matters concerning intra-branch matters. Critics, however, buttress their views on the opinion of many of the judicial community, such as Chief Justice Burger who urge that "the separate powers were not intended to operate with absolute independence."
While the privilege invoked by the executive is most often directed toward members of the legislature, rarely has it been as controversial as when toward the judiciary. During the McCarthy hearings of the 1940's and 1950's, the Eisenhower Administration claimed to enjoy "uncontrolled discretion" to withhold information from Congress, a claim which met the most opposition when Sec. of Defense Melvin Laird of the Nixon Administration advised the Senate Foreign Relations Committee that disclosure of the Pentagon Papers would undermine the "national interest". While the McCarthy excesses warrant further exploration, the greatest debate over the constitutional legitimacy of executive privilege has been unfurled in the judicial arena.
The judiciary has often recognized the need for confidentiality between members of the executive branch but has similarly quashed claims of its absolute nature and have often subpoenaed sensitive information in spite of presidential reluctance. Arguments for and against what many would consider implicit privileges of the office have often clashed in the courtroom, most recently in Clinton v. Jones (137 L.Ed. 2d 945), but most memorably in United States v. Nixon ( 41 L.Ed. 2d 1039). The main and supplemental briefs of Special Prosecutor Jaworski and main counsel to the President James St. Clair cite Court precedents favorable to either side, each forging ahead in largely uncharted constitutional grounds.
Seventeen United States Presidents have refused to respect certain congressional demands for information yet then harshest rebuke was delivered to Pres. Nixon who was cited as a co-conspirator in the criminal investigation conducted by Special Prosecutor Leon Jaworski. The question, therefore, was whether of not the President enjoys absolute privilege over materials which could potentially be admitted as evidence in a criminal prosecution. The Nixon legal team promptly responded that the admittance of confidential communications in a criminal investigation between the President and his advisors would inevitably "chill" the interchange of ideas and obfuscate the administration of the Executive Branch. Jaworski, however, while accepting the Nixon team's worry as valid, saw the broad interpretation of confidential communications as a harbinger of times where courts of law and the United States Congress would be denied necessary information, crucial to their inherent investigatory responsibilities. Critics of this "sovereign prerogative" cite Justice Stewart's concern that "international relations and national defense" would be compromised if executive materials could be unreasonably demanded by the legislative branch, charging that the subpoenaed conversations would not "result in direct, immediate, and irreparable damage to our Nation or its people."
Proponents of the absolute nature of executive privilege similarly speak of a "crippling effect", where the President's authority would be irreparably undermined. In support of their argument are the more than two dozen subpoenas issued by various courts from around the country in the months following Nixon v. Sirica (487 F. 2d 700), demanding voluminous amounts of privileged materials. Therefore, some would argue, actions by the legislative and judicial branches fundamentally undermine the sovereignty of the President over his Administration when they compel his to respond to their demands. Chief Justice Marshall, arguing his opinion in United States v. Burr (25 Fed. Cas. 30 No. 14,629d), however, took it for granted that courts would take into consideration the gravity of the subpoenas "protect[ing] him from being harassed by vexatious and unnecessary subpoenas." It could, therefore, be considered that encroachments by the legislative and judicial branches upon the authority of the executive branches is not only constitutionally suspect but also divergent from the precedents set by, perhaps, the most influential Court in United States history.
Opponents of executive privilege, they too referring to the inter-branch political ramifications of Nixon v. Sirica (487 F. 2d 700), assert that it is not a President's strict control over his/her personal materials that maintains the sovereignty of the executive branch but rather the machinery of the courts to filter unnecessary lawsuits and subpoenas. The Special Prosecutor for one found "no evidence that the courts have failed this duty." It becomes a debate over whether or not executive privilege is an implicit constitutional grant to the President to maintain the autonomy of the executive branch. While some would argue as such, opponents assert that it is largely the self-restraint of all governmental institutions which maintain the clear divisions between them.
Trudging ahead through constitutional ambiguities, proponents of the absolute nature of executive privilege have put forward an argument for that authority based on the First Amendment, expounding upon the argument of the President's counsel in United States v. Nixon (41 L. Ed. 2d 1037). "The President's sole discretion to decide what presidential communications he will disclose, and to control the circumstances of disclosure, is independently grounded in the right of privacy and the constitutionally protected freedom of expression possessed by the President", argued James St. Clair in the President's main brief. It would, therefore, seem that just as the President can be considered both the Office and the occupant of the Office, his rights as an individual are not forfeited with election to the Presidency. The right to privacy as well as the right to free expression should not be breached, it could be argued, and should, therefore, prohibit prying into the private communications of the President.
Critics of this argument have advanced a rebuttal, challenging the First Amendment point as constitutionally suspect. Breaching the President's freedom of expression would imply that his communications were barred from the public. Obligating the dissemination of information, however, is perfectly compliant with the First Amendment and violates no constitutionally-assured rights. In fact, Justice Douglas' assertion in Griswold v. Connecticut (381 U.S. 479) of "a penumbra where privacy is protected from governmental intrusion" is effectively countered by Branzburg v. Hayes (408 U.S. 665) where the majority held that the "First Amendment shield the President or any other citizen from 'the longstanding principle that the public…has a right to every man's evidence.'" The courts have on many occasions lent more weight to this side of the argument than that put forward by the proponents of executive privilege on First Amendment grounds.
Proponents and critics of the absolute nature of executive privilege have often clashed over the dual role of the President, as previously cited. The distinction was underscored in Clinton v. Jones (137 L. Ed. 2d 945) where the justices characterized immunity while in office as a means of preventing "unduly cautious in the discharge of his official duties" and not as a means of providing an unreasonable legal loophole for an irresponsible executive. It could, therefore, be reasonably argued that the President, when acting in his official capacity, enjoys full immunity from litigious criticism of his performance. When, however, the President is acting, not in representation of the Office but as the occupant of that Office, he may be challenged in the courts as would any other American. The Constitution expressly provides for "[t]he executive Power" to be vested in the President, which would seem to imply that actions taken by the President distinct of what could reasonably be considered executive power will not be similarly free of 'vexatious litigation'.
In support of this argument is, among others, United States v. Brewster (408 U.S. 507) which reversed the Court Appeals' decision which held that a particular indictment issued against former Sen. Daniel Brewster was invalid because it put into question a Senator's constitutionally protected motives for legislative action. The Court decided that the Senator's misconduct, accepting a bribe pertaining to certain postal legislation, was obviously beyond the scope of the legislator's intended duties and responsibilities and did not warrant court-respected immunity.
The final question to be considered is whether or not the Executive branch should be accountable or subservient to the Legislative branch. That is, was it in the original intent of the framers to vest absolute control over all things pertaining to executive functions, or was the Legislature meant to dictate the President's relations with other branches of the federal government. While many would argue that a Congress of 535 members would more effectively represent the people of the United States than a single individual, the United States Constitution expressly provides for three co-equal branches. It is, for the most part, that the Founders meant to respect a President's authority over his own confidential communications, especially when those communications bore sensitive diplomatic or military matters. Pres. Madison, in addressing the United States House of Representatives, acknowledged their inherent right to investigate any issue which "might assist their deliberation on subjects submitted to them by the Constitution", while stating that "the Executive had a right, under due responsibility, to withhold information that did not permit disclosure." Similarly, Pres. Jefferson had earlier stated that while the "[House] might call for papers generally…the Executive ought to communicate such papers as the public good would permit and ought to refuse those the disclosure of which would injure the public." It could, therefore, be said that it was expected of the Executive to exercise discretion over which of his private communications ought to be made known to the general public, and that he had the responsibility to withhold any needlessly inflammatory information. The framers of the Constitution, on many occasions, looked to their former motherland for guidance from a revolutionary spirit to one of order, civility and productivity. Alexander Hamilton, serving as Sec. of the Treasury in the Washington Administration, modeled his economic recovery and growth program after the banking and finance system of England. This use of England as a model for certain aspects of government could, in fact, be reasonably extrapolated to include executive, legislative and judicial relations. For example, there is precedent for holding an executive accountable for his actions- the English Crown was, in fact, subject to the process of the courts. It could, therefore, be said that the original intent of the framers was to grant authority to the legislative and judicial branches in such a way that an executive would be held accountable or liable for his own actions.
The cornerstone of the argument against the absolute nature of executive privilege is the majority opinion of the Court in United States v. Nixon (41 L.Ed. 2d 1037), as written by Chief Justice Burger. Critics of the decision often consider it to be a gross usurpation of executive power under the guise of objectivity. The general consensus is, however, that it was the appropriate decision given the circumstances and while showing deference to executive authority could not accept, by any standard, the unreasonable stretch of an already ambiguous privilege. While the Special Prosecutor and the counsel to the President had often clashed over the jurisdiction of federal courts in an intra-branch matter and whether or not Special Prosecutor Jaworski satisfied the requirements of Fed. Crim. Proc. 17(c), which governs the issuance of subpoenas duces tecum in federal criminal proceedings, what has become etched in history is the Court's references to the constitutional legitimacy of executive privilege.
The Counsel to the President James St. Clair was prompt in dismissing the justiciability of the case, contending that the dispute did not present a "case" or "controversy" to be adjudicated in federal courts. St. Clair, in arguing that an intra-branch dispute was clearly a matter for the President to decide, compares the Jaworski's demand of President's private communications and the President's refusal to comply as off-bounds as a dispute between two congressional committees. Chief Justice Burger, however, dismisses all challenges to the justiciability of the dispute, and retorts that "the mere assertion of a claim of an intra-branch dispute, without more, has never operated to defeat federal jurisdiction." "Justiciability", Burger contends, "does not depend on such a surface inquiry." In United States v. ICC (337 U.S. 426), the Court urged all judicial institutions to "look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." The fact only that the President is questioning the authority of a specially appointed prosecutor with unique authority and tenure, refusing to comply with subpoenas requested by that Prosecutor allows for judicial intervention.
The Chief Justice goes on to expose what the Court has held to be the fallacies of the defendant's arguments. The first argument in reference to the nature and exercise of executive privilege is the "broad claim that the separation of powers doctrine precludes judicial review of a President's claim to privilege." That is, the judicial branch should not exercise coercive influence over what the President's counsel sees to be an exclusively executive matter. If the Court were to hand down a ruling mandating the President to behave in a certain fashion within his own Administration, St. Clair argues, will be an unreasonable invasion into a strictly intra-branch matter. The Burger Court, however, dismisses this contention, "unequivocally reaffirming the holding of Marbury v. Madison (1 Cranch (5 U.S.) 137) that '[I]t is emphatically the province and duty of the judicial department to say what the law is.'" It remains undisputed that the Court has the authority to construe and delineate claims concerning powers expressly vested in a certain branch and so, the Chief Justice contends, must similarly have the right to address claims to power implicit in or inferred from enumerated powers. The Court argued in Powell v. McCormack (395 U.S. 486), that the system of government we enjoy "requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." Similarly, in Baker v. Carr (369 U.S. 211), the Court ruled that "deciding whether a matter has in any measure been committed y the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority ha been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter if the Constitution." There is obviously a legal precedent for judicial intervention into issues where constitutional privileges or authorities are at issue, and for the executive to be the final arbiter of a dispute, albeit within his own branch of government, will be itself a usurpation of judicial power. The Court cannot, therefore, sit by idly as intra-branch disputes are resolved by the improper authorities and has already established a firm legal precedent supporting their claim to inter-branch jurisdiction. Chief Justice Burger holds that it "would be contrary to the basic concept of separation of powers and the check and balances that flow from the scheme of a tripartite government."
The Counsel to the President advanced two other arguments in favor of executive privilege, common to the debate and merely expanded upon to apply to the circumstances of the case. The first argument, inextricable from the successful administration of a branch of government is the need for candid, frank suggestions from the advisors to a head of state. "Human experience teaches that those who expect public dissemination of their remarks may fell temper candor with a concern for appearances and fir their own interests to the detriment of the decision-making process", commented the Chief Justice, acknowledging the valid need for the protection of communications between high-ranking government officials, who take it for granted that private conversations exploring imperative but perhaps unpopular courses of action, will remain between those who participated in the discussion. By forcing a straightforward and effective advisor into the political limelight is sure to affect his perception of reasonable and feasible options. The line between necessary and popular will be unhelpfully blurred, and the over-politicization of what should be an objective will surely have an adverse effect on the President's team. The Court, for the most part, accepted this as a legitimate concern "accord[ing] deference for the privacy of all citizens and added to those values the necessity for protection of the public interest in candid, objectivity, and even blunt or harsh opinions in presidential decision making." However, while that privilege is fundamentally rooted in the duties of the President, Pres. Nixon did not allege that the subpoenaed materials contained any sensitive information pertaining to diplomacy or military affairs. However, in such a generalized claim to privilege, the Court is reluctant, to say the least, of capitulating to invocations of executive privilege.
Furthermore, the Court argues, while the need to confidentiality in the communications of the President's office are acknowledged, they are general in nature, while the "constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice." That is, a person's expressly granted rights of the Sixth Amendment can not be undermined by an inference of executive privilege. Without access to all germane facts, criminal proceedings could be completely frustrated. "The public", argued the majority in United States v. Bryan (339 U.S. 331), "has a right to every man's evidence". Confidentiality in communications between a President and his advisors can not enjoy greater respect than the fundamental demands of due process. "To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to the enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and non-diplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Art. III."
The next argument put forth by the defendant regards the doctrine of a separation of powers. The counsel to the President argues that the judicial branch has no authority over intra-executive branch matters, and to attempt to influence the resolution of an intra-branch dispute would breach the separation of power established by the Constitution. Citing Humphrey's Executor v. United States (295 U.S. 602) and Kilbourn v. Thompson (103 U.S. 168), St. Clair argued for the insulation of the President from a judicial subpoena in a pending criminal investigation and must, by extension, apply to the confidential communications of the President. "However", responds Chief Justice Burger, "neither the doctrine of the separation of powers, nor the need for confidentiality of high level communication, without more can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances." That is, we can not expect the Judicial Branch from forfeiting its role in the government merely to accommodate the Executive Branch. Therefore, when conflicting within their constitutionally-mandated responsibilities, the implicit privileges of the President do not take precedence. Just as St. Clair argues against judicial interference in the executive branch, Pres. Nixon's claim to absolute privilege interferes with the duties of the judicial branch.
The United States Supreme Court and lower courts have, on several occasions, recognized the validity of executive privilege, but have never accepted it as an absolute power, constitutionally sound in every context. The Nixon legal team extended the privilege dangerously, hoping to mount serious opposition to Special Prosecutor Jaworski. Jaworski was at the inherent advantage of having a largely solid constitutional argument while St.Clair was forced to defend what many people have always considered constitutionally suspect. It seems unreasonable to entirely disregard the implicit benefit of executive privilege, but it is similarly unreasonable to assume that the President enjoys full immunity under it. Generalities will not defeat targeted litigation. When a person's Sixth Amendment rights are compromised for what the Nixon team admitted to be nonmilitary and non-diplomatic, the Supreme Court is obligated to intervene. However, it is essential that we appreciate the role executive privilege plays in a system of checks and balances. Invoking a right to executive privilege by the Eisenhower Administration as a means of checking the McCarthy legislative excesses was a welcome change to a Congress overstepping its responsibilities.
In conclusion, it is critical the political community understands that executive privilege is inherent in the head of an administration. However, once it encroaches upon the privileges and responsibilities of another branch it must be expediently checked. Information injurious to the public should not be disseminated unless absolutely necessary. However, information injurious to the public if concealed is similarly unacceptable. A cloud must never be cast over executive privilege simply because Pres. Nixon sought to employ it as justification for clearly unjustifiable actions. The arguments in favor of its limited invocation ably withstand constitutional muster. However, the United States Constitution is not one of grants for absolute power. Actions outside an official capacity should never be taken as immune from judicial scrutiny.




















Bibliography:
Berger, Raoul. "Executive Privilege: A Constitutional Myth". Harvard University Press;
Cambridge, Massachusetts 1974
Berger, Raoul. "Federalism: The Founder's Design". University of Oklahoma Press; London
1988
Hoffman, Daniel N. "Governmental Secrecy and the Founding Fathers; Greenwood Press
Westport CT 1981

Special Prosecutor's Main Brief in United States v. Nixon, 1974
Special Prosecutor's Supplemental Brief in United States v. Nixon, 1974
The President's Main Brief in United States v. Nixon, 1974
Special Prosecutor's Reply Brief in United States v. Nixon, 1974
The President's Reply Brief in United States v. Nixon, 1974
The American Civil Liberties Union Amicus Brief in United States v. Nixon, 1974
United States v. Nixon (41 L.Ed. 2d 1037, 1974)
Clinton v. Jones (137 L. Ed. 2d 945, 1997)