Posted Friday, June 13, 2008, at 9:41 PM
In a new Slate "Jurisprudence" essay , former U.S. Attorney David Iglesias criticizes the White House's invocation of the executive privilege to protect certain communications among the president's advisers. He argues that the Bush administration has stretched privilege beyond the limits of the law. His argument, however, is squarely at odds with the case law on the point.
Iglesias specifically criticizes a June 2007 letter (PDF) from the White House to Sen. Leahy and Rep. Conyers, chairmen of the Senate and House judiciary committees. In that letter, the White House refused to produce documents of Harriet Miers', former counsel to the president, and Sara Taylor's, former deputy assistant to the president and director of political affairs, or to allow them to testify. Instead, the White House invoked executive privilege:
[T]he President was not willing to provide your Committees with documents revealing internal White House communications or to accede to your desire for senior advisors to testify at public hearings. ... [F]or the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.
Citing the seminal Supreme Court decision on the subject, U.S. v. Nixon , Iglesias responds:
So now, the qualified privilege carved out in the Nixon decision is supposed to cover discussions among advisors that never even speak to the president, and then beyond that to cover even "others ... outside the Executive Branch"?
To be blunt, the answer is, "Yes, at least since 1997."
The U.S. Court of Appeals for the D.C. Circuit squarely decided this issue over a decade ago, in In re Sealed Case (1997) . The court held that the executive privilege covered many communications among the president's advisers, even when the president was not a party to the communication, and even when the advisers communicated with non-White House advisers:
[T]he public interest is best served by holding that communications made by presidential advisors in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President.
Given the need to provide sufficient elbow room for advisors to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisors solicited and received from others as well as those they authored themselves.
The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential advisor's staff, since in many instances advisors must rely on their staff to investigate an issue and formulate the advice to be given to the President.
As for non-White-House advisers:
In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.
Thus, contrary to Iglesias' protest, the White House broke no new ground by asserting executive privilege with respect to communications and documents among the president's advisers, even non-White-House advisers. So long as those communications fall within the standards set by Nixon , In re Sealed Case , and progeny, they're protected by the privilege.