Executive privilege explained

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Will the president employ “executive privilege” to keep ousted FBI director James Comey from testifying or providing documents to Congress? Just what is executive privilege anyway?

You won’t find it clearly defined in the U.S. Constitution or any federal statute. Laws dance around it, but it’s more of a concept tried and tested by many presidents — with wins and losses determined by courts — since the infamous Watergate case. Obviously, Nixon lost that one. Same goes for President Clinton, who couldn’t keep his initial silence about Ms. Lewinsky. Other assertions of executive privilege have been successful, such as when the first President Bush prevented the release of Navy documents during a Congressional investigation of its aircraft program.

Clear parameters elude the historically case-by-case approach. Cornell University’s Legal Information Institute defines it as the privilege allowing the president (and others in the executive branch) to keep certain communications private, if disclosing them would disrupt the branch’s functions and decision-making process.

In plain terms, the president needs advice unfettered by fears of public censure. On the other hand, the public’s right to know what its leaders do, and why, is the cornerstone of a free republic. Privilege tests the fulcrum balancing these two.

As Watergate demonstrated, executive privilege doesn’t extend to information germane to a criminal investigation. Even where it exists, it can be overcome by a “compelling government interest” in disclosure. That’s legal jargon for the highest of three levels of scrutiny applied by federal courts when considering the legality of government action.

According to New York University’s Brennan Law Center, potentially protected executive disclosures fall into four basic categories:

1. Presidential communications: Directly from the president, or to him from his immediate advisers, or sometimes, between those advisers. Subject is material; actual advice and policy issues are more likely to qualify.

2. Attorney-client: Government enjoys the same attorney-client confidentiality as do private citizens; however, executive privilege doesn’t apply in cases of criminal accusation.

3. Deliberative process: This protects “pre-decisional” communications. The idea is that, except in cases of misconduct, disclosing these could discourage the give-and-take nature of the decision-making process, and diminish its effectiveness.

4. National security: Obviously keeping sensitive and security-related information from public disclosure is appropriate. However, this privilege has also historically been ripe for abuse, so courts tend to carefully scrutinize the supporting facts before recognizing it.

Even if executive privilege for a particular communication exists, like other types of legal privilege it can be waived. One example of waiver would be the president’s own public disclosures on the same topic.

It’s impossible for anyone to predict with certainty where the chips will fall. That’s one of the defining elements of democracy: The line balancing the people’s right to know, against their representative government’s interests in restricting that right, is never a straight one.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.

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