Former White House chief strategist turned presidential punching bag Steve Bannon reportedly refused to answer any questions about the presidential transition during an interview with the House Intelligence Committee, which is investigating Russian interference in the 2016 election on behalf of President Trump. He claims that conduct during the transition is covered by “executive privilege,” which protects Trump’s private communications and documents.
It’s not the first time executive privilege has been used by a member of the administration to evade Congressional questioning.
On June 13, Attorney General Jeff Sessions appeared before the Senate Intelligence Committee on Tuesday, he pointedly refused to answer basically any questions about his conversations with President Trump.
Sessions insisted that because Trump enjoys executive privilege, he could not disclose any conversations he and the president might have had. “It would be premature for me to deny the president a full and intelligent choice about executive privilege,” he told Sen. Angus King (I-ME).
Both Bannon and Sessions’ intransigence infuriated committee members, and their frustration has sound basis. While the president has a presumed right to privacy in his communications, the privileges enjoyed by Cabinet officials and senior advisers are much milder, and those officials cannot invoke executive privilege on the president’s behalf.
Furthermore, courts have been clear that even the president’s privileges are limited in scope, and specifically limited in ways that suggest the Trump administration has little basis to duck investigations from Congress and the special counsel’s office.
What executive privilege is
Executive privilege generally refers to the principle that the executive branch can sometimes ignore the legislature or judiciary’s subpoenas or other attempts to gain information from the White House, the president, his aides, and Cabinet agencies.
Often it’s limited to the president alone. Sessions, for instance, repeatedly insisted in his hearing that he was not invoking executive privilege; “I'm not able to invoke executive privilege. That's the president's prerogative,” he told Sen. Martin Heinrich (D-NM). Rather, he was refusing to answer in case the president himself wanted to invoke it later.
“Cabinet officials cannot claim executive privilege,” Mark Rozell, a professor at George Mason University and the author of Executive Privilege: Presidential Power, Secrecy, and Accountability, explained in an email last June. “That is a presidential power alone.”
Executive privilege is sometimes divided into two types, each with its own justification. The first, sometimes referred to as “presidential communications privilege,” is justified based on the system of separation of powers unique to the American Constitution, which seeks to give each co-equal branch of government broad latitude to function without interference from one of the other two.
In United States v. Nixon, the most high-profile executive privilege case ever decided by the Supreme Court, Chief Justice Warren Burger (writing for a unanimous Court) concluded that there is a “presumptive privilege for Presidential communications” that is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”
The other type of executive privilege, referred to by Judge Patricia Wald of the DC Circuit in an important 1997 case as “deliberative process privilege,” comes not from the US Constitution’s separation of powers but from the common-law notion that government officials should be free to privately deliberate before deciding on a particular course of action.
This privilege is both broader in applicability than the presidential communications privilege — since it can apply to conversations within the executive branch that don’t involve the president directly — and more limited in its strength. It only applies to documents and discussions when a decision was being made, while presidential privilege can protect “final and post-decisional materials as well as pre-deliberative ones,” per Wald.
Further, the Nixon case suggested that deliberative process privilege is less strong than presidential privilege and can more easily be outweighed by other concerns. “The [deliberative] privilege disappears altogether when there is any reason to believe government misconduct occurred,” Wald writes. “On the other hand, a party seeking to overcome the presidential privilege seemingly must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials.”
Does executive privilege excuse Bannon, Sessions and other Trump officials not answering questions?
The Nixon ruling was extremely clear that not all subpoenas and inquiries can be quashed due to executive privilege. While separation of powers concerns give the president a presumptive right to privacy in his communications, this presumption can be overridden in certain cases.
"This presumptive privilege must be considered in light of our historic commitment to the rule of law," Burger writes. While presidential secrecy has a constitutional basis in the separation of powers, "[t]he right to the production of all evidence at a criminal trial similarly has constitutional dimensions," so the court "must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice.”
And the Court judged that “the fair administration of criminal justice” outweighed the president’s right to confidentiality in communications, at least in the case of the criminal inquiry into Richard Nixon.
How does this apply to the Trump-Russia investigation? Well, for one thing, presidential communications privilege cannot be invoked by a non-president, like Bannon or Sessions. As Yale Law School's Asha Rangappa told my colleague Sean Illing last June, Sessions "cannot 'preemptively' invoke it on the president's behalf."
The question of whether Trump himself can obstruct subpoenas or decline to answer Congress's questions by invoking executive privilege — or if, by invoking executive privilege, he can bar people like Sessions from testifying about their conversations with him — is more complicated. He, like all presidents, enjoys a presumption of confidentiality.
But reports that Special Counsel Robert Mueller is investigating Trump himself for obstruction of justice suggests a very similar situation to the one Nixon found himself in. If Trump were to fail to obey subpoenas from Mueller, then it’s likely that courts would obey the Nixon precedent and require him to comply, on the grounds that the rule of law trumps his executive privilege.
The possibility of Trump not complying with a congressional investigation raises further questions. As Rangappa noted to Illing, a failure to comply with congressional subpoenas further implicates “Congress’s constitutional power of inquiry through investigatory bodies.” Courts could decide that Congress’s constitutional obligation overrides Trump’s presumptive right to confidentiality.
A US district court has already ruled that Congress’s investigatory powers trump executive privilege in cases like this. In Committee on the Judiciary v. Miers, the Bush administration was using executive privilege to try to block a subpoena by House Judiciary Committee Chair John Conyers (D-MI) for testimony by former White House counsel Harriet Miers and Chief of Staff Joshua Bolten.
Judge John D. Bates of the US District Court for the District of Columbia (himself a Bush appointee) "reject[ed] the Executive’s claim of absolute immunity for senior presidential aides" and ordered the White House to comply with the subpoena. "Congress’s power of inquiry is as broad as its power to legislate and lies at the very heart of Congress’s constitutional role," the opinion read. "Presidential autonomy, such as it is, cannot mean that the Executive’s actions are totally insulated from scrutiny by Congress. That would eviscerate the Congress’s oversight functions."
A district court ruling doesn’t have the precedental weight of a Supreme Court ruling like United States v. Nixon. But Bates’s conclusion does suggest that Trump is likely to get bench-slapped if he tries to withhold documents from either the congressional committees or the special counsel investigating him.