Obama-Clinton emails: No basis for withholding from Congress

Presidents have long claimed the right to withhold information when they believed that doing so would protect the national interest or preserve their right to receive candid advice. The constitutional-based principle of executive privilege has long supported that presidents have secrecy needs that sometimes must override demands for internal White House documents or testimony by certain executive branch officials.
As with almost all constitutional-based powers, the president’s right to secrecy must be balanced against other legal principles, especially Congress’s oversight and investigative functions. The latest flare-up between the branches - President Barack ObamaBarack ObamaOvernight Regulation: Trump administration reveals first regulatory agenda | GOP lawmakers introduce measures to repeal arbitration rule | Exxon gets M fine for sanctions violation Mounting nationwide immigration enforcement costs 20 attorneys general urge DeVos to keep college sexual assault protections MORE’s claim that he may withhold from Congress the contents of some emails between himself and former secretary of state Hillary ClintonHillary Rodham ClintonTrump officials: Russia meddled in the election Trump lawyers asking about presidential pardon powers: report CIA director: 'I don't love' Wikileaks MORE – puts to the test the balancing of the different constitutional-based principles.

The president is on shaky ground in claiming that he may withhold emails germane to Congress’s investigation of the Benghazi tragedy. At the outset, we concede that these days politics drives almost all in these types of disputes. Clinton, the clear Democratic Party presidential favorite, bested the legislative committee that grilled her – made all the easier by some Republicans who boasted of overtly political motivations. Fending off additional demands for emails is all the easier now in this politicized environment. But that does not matter to the issue of constitutional standards.

First, the president is not claiming executive privilege. If indeed he stands fast refusing to divulge internal documents such as emails between himself and his secretary of state, a claim of executive privilege is necessary. Even then an executive privilege claim in this situation would be a weak one. The federal courts have noted that presidential communications do not allow for a limitless extension of protection of information. In fact, the courts have declared that the privilege’s reach extends only to White House staff as “not every person who plays a role in the development of presidential advice…can qualify for the privilege.” There is a significant distinction between White House staff and executive branch officials who exercise independent, statutorily based positions that require them to perform other duties besides advising
the president. Clinton --- as a former secretary --- falls under the latter category and therefore her communications are most likely subject to congressional investigations and FOIA requests for information.

Second, the balancing test between a claim of secrecy and demands for access to information germane to an investigation does not favor the president in this case. The general standard for the balance tipping in favor of the president is that there will be some harm to the public interest in releasing documents to Congress and ultimately to the public. Yet when the president himself stepped into the political waters earlier, he stated that he didn't believe that the FBI investigation of Clinton's emails would produce anything damaging to her.  If so, then the White House should let the investigation move toward a conclusion based on evidence and analysis. If there is no harm potential for the former secretary of state, it is hard to imagine any damage to the public interest in releasing the emails.

Third, the president’s action directly contradicts his pledge to conduct the “most transparent administration in history”. In fact, it keeps alive much longer the ongoing battle between the branches over access to information that can address the various issues surrounding the Benghazi investigation. Further, the mere act of concealing fuels the existing suspicions of many that there indeed is something to hide, otherwise the highest-ranking actors in the command chain would be forthcoming to prove their critics wrong.

In the end, there is no winning formula in withholding the emails, only more contention – and all supposedly in the interest of protecting an institutional power. Obama’s secrecy claim fails for being too broad and for not overcoming the strong presumption in favor of congressional access to information. Simply put, the president cannot make vague references to protecting candor or to maintaining boundaries in our system of separated powers merely to avoid the release of potentially embarrassing or politically inconvenient information.

Rozell is acting dean of the School of Policy, Government, and International Affairs at George Mason University and author of the book Executive Privilege. Sollenberger is associate provost at University of Michigan-Dearborn and author of the book The President Shall Nominate.