A judicial win for executive privilege, not transparency

A judicial win for executive privilege, not transparency

For those who thought special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE’s investigation of the possible links between Donald TrumpDonald TrumpTrump goes after Cassidy after saying he wouldn't support him for president in 2024 Jan. 6 panel lays out criminal contempt case against Bannon Hillicon Valley — Presented by Xerox — Agencies sound alarm over ransomware targeting agriculture groups MORE’s presidential campaign and Russia’s interference in the 2016 presidential election was behind us, a federal district court ruling earlier this month provides a new twist on the questions the investigation raised about presidential power and accountability. In particular, District Court Judge Reggie Walton held that under the principle of executive privilege, the Federal Bureau of Investigation could withhold certain information that was part of a Freedom of Information Act. 

Judge Walton’s decision raises complicated issues of executive privilege, as some of the information withheld included communications by then President-elect Trump or one of his close transition-team advisers. As executive privilege is recognized under law as an Article II-based presidential power, how is it then that a president-elect and his staff are accorded this protection?  

We have written extensively on executive privilege and are dubious about any claims that non-governmental officials are covered by this legal principle. They exercise no constitutional or legal authority and cannot be held to account in the same ways as individuals who occupy public offices.   


However, presidential transition discussions and decisions can have significant consequences on future government actions. As a result, an acknowledgment must be given to the unique status of a president-elect, as few individuals outside the federal government are given such access to information and fewer still will ever hold vast powers.   

That does not mean a blanket shield over any and all transition communications, and we believe that more than the usual limits on presidential use of executive privilege pertain during this period. Indeed, the bar is especially high prior to the president taking the oath of office to legitimately claim executive privilege. Security and intelligence briefings are the most likely to be protected by privilege.  

A question not directly tied to this district court case is whether documents produced during a presidential transition should be subject to preservation under the Presidential Records Act. We believe that documents or materials related to a president carrying out his constitutional or statutory duties of office – even if produced before an inauguration – should be considered part of the presidential records of the officeholder. If presidential transition documents are subject to record-keeping requirements, then it is reasonable that executive privilege claims can apply to some limited transitional materials and information.  

The emphasis on qualifications for executive privilege claims highlights the second issue that this court opinion raised, which is whether a president must formally declare executive privilege in order to avail himself of its protections. Judge Walton decided that the executive privilege protections do apply even without a formal declaration from the president. Here we disagree.  

In order to understand the importance of invoking executive privilege, one should remember that in our governing system, the default position for information is to make it public and accessible to everyone. That way the people and, for more practical reasons, the other branches have an informed understanding of government actions in order to hold government officials accountable. As Supreme Court Justice Louis Brandeis once stated: “[p]ublicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”   

Of course, the default position to openness must be balanced with the need to protect certain information. But that is why the Supreme Court stated clearly in United States v. Nixon that all assertions of executive privilege are subject to a balancing test and, in some situations, the need for access to information is outweighed by presidential claims to confidentiality.   

But again, the two values of transparency and confidentially do not start off in the same position. The presumption should always be in favor of openness and transparency, and withholding information is the exception. That is why requiring a president to make a formal executive privilege claim is so essential. In order to properly evaluate such a claim, it is vital to understand what information is intended to be protected along with the underlying rationale. That way a balancing of interest test can properly be conducted. Without such information, there is no test.  

Unfortunately, the judiciary has provided too many protections for presidents and their administrations when it comes to supporting their ability to maintain secrecy at the expense of openness and the accountability. This latest judicial intervention got it part right, but still leaned too much on the side of protecting a broad sphere of presidential discretion to maintain secrecy.  

Mitchel A. Sollenberger is professor of political science at University of Michigan-Dearborn. Mark J. Rozell is dean of the Schar School of Policy and Government at George Mason University. They are co-authors of the forthcoming book (with Jeffrey Crouch), “The Unitary Executive Theory: A Danger to Constitutional Government” (University Press of Kansas, 2020).