Legislating Executive Privilege from the Bench

One of the most popular refrains from conservatives in America is that judges shouldn’t “legislate from the bench” and that “judicial activism” is a source of some of this nation’s most serious problems. We hear this from both political and religious conservatives about equally, though they tend to use it in different sorts of cases.

More than one person has noticed a serious lack of consistency — and therefore intellectual honesty — in these arguments. Aside from an absence of any coherent definition of what “judicial activism” is supposed to mean, there is a long, long list of examples can be compiled to show how conservatives support “legislating from the bench” when it comes to decisions they like. One that I find particularly interesting right now is the concept of “Executive Privilege.”

Anyone who is half-way paying attention to the antics of the Bush administration has probably noticed how often they have claimed executive privilege as a justification for not turning over important documents to courts or the Congress. According to the administration, the president and his appointees don’t have to provide any material to anyone if they think that it would inhibit their ability to do their job.

Where, though, does this notion of Executive Privilege appear in the Constitution? Nowhere.

The Constitution does specifically provide for legislative privilege, but there is no mention of executive privilege. Presumably, if the framers had intended for the executive branch to have any sort of special privileges, they would have written it into the Constitution just as they did with legislative privilege. Right? If this idea didn’t come from the framers of the Constitution, then where did it come from? It was basically created by the Supreme Court in 1974 when they ruled on the case of United States v. Nixon.

In this ruling the Court used the common and otherwise uncontroversial method of seeing how the text in front of them implies certain ideas which may not be stated outright, but which must necessarily be true for the text to make any sense. Put simply, executive privilege of some sort is necessary for the separation of powers to make sense. In its ruling the Court stated:

The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to these values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in presidential decision-making.

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. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.

Nixon wasn’t the first president to want to withhold information from the Congress, of course. Presidents Washington and Jefferson chose to keep certain things to themselves even in the face of demands from Congress. Before Nixon, though, these conflicts were contests of wills rather than contests of lawyers: Congress threatened to withhold money or find officials in contempt unless legislators got what they wanted while the President stalled and stalled until the sought-after material became irrelevant.

Fortunately the Supreme Court didn’t give President Nixon carte blanche to claim executive privilege and withhold documents whenever the notion struck him. In particular, the Court subordinated executive privilege to grand juries demanding evidence which is “demonstrable relevant” to a criminal investigation. Looking at matters from the other direction, claims to executive privilege can be weaker or stronger depending on the context. The claims are weakest when they involves nothing more than confidentiality for advisors and strongest when they involve military secrets.

Not much more can be said about the legal boundaries of executive privilege because there have been so few court rulings on the matter. That is very critical here: the legal boundaries of other doctrines (like separation of power) are easier to describe because they are created by the Constitution whereas executive privilege is purely a judicial creation. Because it exists solely in the text of a couple of court cases, only more court cases can say anything about what it is. In United States v. Nixon, the Court recognized this and stated bluntly that it is up to them “to say what the law is.”

As I said, though, there haven’t been many court cases on this so there isn’t much to go on — not just for observers like us, but also for members of the government whose jobs require knowing about this sort of thing. If you are a lawyer in the executive branch, how do you advise the president on his chances of winning a legal fight when claiming executive privilege in some particular case? If you are a lawyer in Congress, how do you determine when it’s worth taking a case to court to force the president to turn over certain documents? How do either even formulate coherent legal arguments when there is so little to go on?

If we use the common conservative rhetorical strategies of insisting only on “original intent” and decrying judges who “create” law rather than merely apply the written law, then it would seem that we should reject this notion of executive privilege and castigate anyone who tries to claim it. To be fair, given the messy legal situation described above, it’s hard not to see some value in this — I think that there is probably a very good argument for the idea that this should have remained a contest of political wills rather than one of dueling legal briefs.

Just how likely is it, though, that we will hear from any prominent conservatives objecting to President Bush’s claims of “executive privilege” by arguing that the entire notion is nothing more than a court-created concept with no textual basis in the Constitution? I won’t hold my breath…