Where does history draw the line on White House communications?
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There has been much discussion of whether former FBI Director James Comey’s memos of his conversations with the president — and his testimony about those conversations — are protected by executive privilege. Although the White House did not assert privilege and prevent Comey from testifying before the Senate Select Committee on Intelligence, reports that the president’s private counsel may file a complaint alleging that Comey leaked privileged material to the press again raises the question of whether the communications were in fact privileged. While President Trump may have hoped his conversations with Comey would remain confidential, they almost certainly were not privileged.

Others have made compelling arguments that the president waived any privilege that existed by tweeting about the conversations at issue, that the privilege disappears when there is, as courts have stated, “any reason to believe government misconduct occurred,” and that Congress — not to mention Special Counsel Robert Mueller — need the information sufficiently strong to overcome the privilege. They have also pointed out the practical difficulties in enforcing a privilege assertion to prevent a former official from providing information. There is a more fundamental question, however, as to whether the rationale for the privilege justifies its application here at all.

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Courts have recognized several components of what is commonly referred to as “executive privilege,” including the presidential communications privilege. The Supreme Court and the Court of Appeals for the D.C. Circuit, in the leading judicial decisions on this privilege, have made clear that the privilege “is rooted in the need for confidentiality to ensure that presidential decisionmaking is of the highest caliber, informed by honest advice and full knowledge.” These decisions further explain that “confidentiality is what ensures the expression of candid, objective, and even blunt or harsh opinions and the comprehensive exploration of all policy alternatives before a presidential course of action is selected.”

 

As courts have explained, the presidential communications privilege affords greater protection against disclosure than the deliberative process privilege, which is another component of executive privilege. At bottom, however, the privilege is concerned with protecting presidential decision-making processes and ensuring that presidential advisers have space to provide candid advice to the president. There is no suggestion that it covers all presidential communications with executive branch officials. This is not to say that the president must actually make a decision for the privilege to apply.

For example, officials from two executive branch agencies might disagree on a policy issue relevant to both agencies, causing presidential advisers to gather information and formulate advice in the event that cabinet-level officials could not reach agreement. Even if the issue were ultimately resolved at the agency level and not presented to the president for decision, the presidential advisers’ communications should be deemed privileged. Some realistic probability of presidential decision-making, however, is required.

It is hardly clear that there was any likelihood of presidential decision-making with regard to the FBI’s investigation of Michael Flynn. One might argue, notwithstanding a long tradition across administrations of recognizing the Justice Department’s independence in investigating and prosecuting crimes, that the President has ultimate authority over the enforcement of federal criminal law as head of the executive branch. That theoretical argument, however, is difficult to square with the facts here to successfully invoke the presidential communications privilege, for at least two reasons.

First, longstanding and publicly available Justice Department policies emphasize the importance of insulating from political influence agency officials responsible for the enforcement of federal criminal law. Under these policies (which the White House has effectively endorsed through its own, publicly available policy), the FBI director is not one of the small number of agency officials who is authorized to communicate with White House officials about pending investigations. Nor is there any reason to believe that this was one of the rare circumstances where communication with the White House about an investigation was authorized: providing information about the investigation was neither important for the performance of the president’s duties nor appropriate from a law enforcement perspective.

Second, according to Comey’s version of events — as well as the president’s reaction to Comey’s account — the president did not treat the investigation as a matter on which he was to make a decision. To be sure, Comey recounted, and the president’s private counsel has disputed, what may be efforts by the president to influence the investigation. But there is no suggestion here of any gathering of facts, legal analysis, and recommendations for a presidential decision.

In order to establish a predicate for invoking the presidential communications privilege, one ordinarily would first identify the potential presidential decision at issue. No facts have been cited to suggest that the handling of the Flynn investigation, or the investigation into foreign interference in the presidential election, was considered by anyone as a matter for presidential decision.

If it were, there would have been no valid reason for the president to exclude Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump attack on Sessions may point to his departure Hillicon Valley: Trump's exclusive interview with Hill.TV | Trump, intel officials clash over Russia docs | EU investigating Amazon | Military gets new cyber authority | Flynn sentencing sparks new questions about Mueller probe Sessions in Chicago: If you want more shootings, listen to ACLU, Antifa, Black Lives Matter MORE from his conversation with Comey, as the former FBI director testified. The attorney general had not yet recused himself at the time, and he was at that point ultimately responsible for any prosecutorial decisions. Nor would it have made any sense, as alleged in press reports, for the president to ask other officials with no responsibility over the investigation to intervene with Comey in an effort to influence him.

A robust presidential communications privilege is important to allow for the expression of candid, unvarnished advice by ensuring the confidentiality of the presidential decision-making process. In order to preserve that privilege, however, it is essential to recognize its boundaries and to be judicious in its assertion.

Failure to do so could result in Congress aggressively challenging claims of executive privilege and judicial decisions rejecting such claims. Even agency officials who are asked not to reveal purportedly privileged communications may express increasing skepticism about assertions of executive privilege.

Brent Wible is a counsel with Freshfields Bruckhaus Deringer LLP in Washington, DC. He previously served as a federal prosecutor in New York and as a senior counsel and special assistant to President Obama in the Office of the White House Counsel.


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