executivepriv

Can a confidant really keep the president’s secrets, or can
he be compelled to testify about them by a prosecutor
who is investigating the president? This lecture will explore
the balance between finding the truth in an investigation and the
president’s need for candid advice and a confidential sounding board
for policy discussions. While the president is granted privacy in some
situations, these testimonial privileges are not an unlimited, absolute
protection. This helps to ensure that the people remain in control of
their government.
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Investigating American Presidents
Finding the Truth
The American legal system is an engine for determining the truth and
finding out what the facts are, but the truth is often obscured during
a criminal investigation.
American society often places a higher value on procedural protections
that are designed to assist in the search for truth in the long term than on
finding out the facts in every individual case. Because of those procedural
impediments, the search for truth in particular cases often founders.
In its search for truth, the judicial system uses two fundamentally competing
paradigms. In general, all witnesses are under an obligation to testify
truthfully, under pain of criminal prosecution for perjury. But we also have
a structure of testimonial privileges that we have erected which sometimes
permit witnesses to refuse to testify truthfully. These two strands of the
law are in tension—not typically in an individual case, but as competing
expressions of the goals of our judicial structure.
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Presidential Use and Abuse of Privileges Lecture 7
In fact, our legal system provides not just one testimonial privilege, but
many. Anyone who watches crime dramas is familiar with the Fifth
Amendment’s privilege against self-incrimination—the basis for the famous
admonition that you have the right to remain silent. Beyond that privilege,
our system also provides that wives cannot be compelled to testify against
their husbands, and priests cannot be compelled to disclose what they learn
in the confessional.
These latter protections are based on our collective values. As a society, we
say that marital communication is so important that we don’t want to pit
husbands against wives. We say that confession is good for the soul—and
so we don’t want to make a priest testify as to what someone has confided.
Attorney-Client Privilege
The first of two testimonial privileges that are typically relevant to the
president is attorney-client privilege. Attorney-client privilege is the general
idea that your lawyer is not permitted to and cannot be compelled to
disclose whatever you tell her in confidence as part of her representation
of you. In the interest of truth and justice, we want to foster candid
communications between client and attorney. For that reason, the attorneyclient privilege usually protects lawyers from being forced to testify against
their clients.
Any American who hires a lawyer can rely on this privilege, which is
generally thought to have two important grounds.
The privilege encourages clients to be truthful with their lawyers.
If a defendant thought that his attorney could be compelled to turn
around and repeat what he had said, the defendant would be unlikely
to tell his lawyer the unvarnished version of what happened.
The second reason is closely related, but it applies only to the criminal
side of an investigation; the privilege is an important adjunct to the
Fifth Amendment privilege against self-incrimination. If a suspect
cannot be compelled to testify against himself, the privilege would
be strongly undercut if his attorney could be compelled to say what
he had said. It is about protecting the rights of the accused.
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Investigating American Presidents
There is a guide book prepared by the US Department of Justice, the United
States Attorneys’ Manual (USAM), that serves as an internal set of rules that
tell the lawyers who represent America in court how they are supposed to
do their jobs. In short, it’s a procedural manual on the who, what, when,
where, why, and how of prosecuting cases. It embodies what the government
considers important and what it thinks is not.
It is significant that the USAM has an entire section that limits what
investigators may do regarding the attorneys of criminal suspects. It says,
for example, that using a search warrant to search an attorney’s office is
a serious impingement on the value of the attorney-client privilege. It’s
not unheard of to do so, but when investigators think that a search in an
attorney’s office is necessary, the manual requires high-level approvals. It
requires investigators to exhaust other investigative avenues before they
search. And it requires specific procedures that are to be followed to limit
the examination of privileged documents.
Limitations on Attorney-Client Privilege
For the attorney-client privilege to exist, there must actually be an attorneyclient relationship regarding a specific matter.
If someone has a lawyer to help resolve a tax dispute with the IRS,
the representation is limited to that matter and so is the privilege.
Other things he may have told his lawyer in passing are outside the
scope of the representation and are not privileged.
Other conversations with a lawyer are not automatically covered by
the privilege. If a president asks a lawyer for political advice, that
conversation is not protected by the attorney-client privilege.
The law is clear that as a general matter, a person cannot claim to have
an attorney for all matters that might arise. One obvious reason for this
limitation is that it would frustrate legitimate investigations.
Another important limitation on attorney-client privilege is the crime-fraud
exception. This exception allows the government to read, review, compel
production of, and compel testimony of an attorney and his or her records. It
arises if, and only if, the client uses the attorney’s services to commit a crime.
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Presidential Use and Abuse of Privileges Lecture 7
For example, when Monica Lewinsky was subpoenaed in Paula
Jones’s sexual harassment lawsuit against Bill Clinton, Lewinsky
submitted an affidavit saying she had never had any sexual contact
with the president. We now know that was a lie, and because she
used a lawyer to help draft the affidavit, that lawyer was required to
testify about his interactions with Ms. Lewinsky.
The crime-fraud exception demonstrates how testimonial privileges are
limited to their theoretical justification, meaning that privileges are always
in derogation of the truth, so they are generally construed quite narrowly.
Executive Privilege
The other testimonial privilege that comes into play with respect to
presidents and those who work for them is executive privilege. Executive
privilege is the right of the president and the executive branch to withhold
information from public scrutiny.
In many ways, the reasoning behind executive privilege is similar to that
of attorney-client privilege. The purpose is to foster candid political and
policy-based discussions between the president and his advisors, so the
president is granted the right to keep his closest advisors from being forced
to reveal their conversations with him.
Dwight D. Eisenhower was the first
president to use the phrase “executive
privilege,” but the idea is almost as
old as the nation itself.
Although executive privilege is
not mentioned anywhere in the
Constitution, George Washington was
the first to invoke the concept, albeit
unsuccessfully. That was in 1792, when he
tried to refuse congressional and judicial requests for information
about a military expedition in Ohio. In the end, Washington gave
in and sent all of the requested papers to Congress.
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Investigating American Presidents
Executive privilege extends not just to the legal advice that the president
receives but, at least in theory, to many communications that take place
within the executive that are intended to develop policy within the executive.
Despite the seemingly essential nature of executive conversations, they
are not always privileged against disclosure. Indeed, quite to the contrary,
history seems to tell us that they are less well protected than are attorneyclient conversations.
Limitations on Executive Privilege
The most famous case involving a presidential invocation of executive
privilege is President Richard Nixon during the Watergate scandal. The
special prosecutor had issued a subpoena demanding that President Nixon
turn over the tapes of conversations in the White House. Nixon resisted,
asserting that the confidential nature of the conversations made them
privileged against disclosure.
Nixon lost, but he did not completely lose. The Supreme Court recognized
that there was a set of competing values.
As it said, there is a “valid need for protection of communications
between high government officials and those who advise and assist
them in the performance of their manifold duties.”
On the other hand, the Court rejected Nixon’s extreme reading
that he had an absolute power to withhold the tapes. Referring to
Article II of the Constitution, which defines executive power, the
Court held as follows: “To read the Article II powers of the president
as providing an absolute privilege as against a subpoena essential
to enforcement of criminal statutes on no more than a generalized
claim of the public interest in confidentiality of nonmilitary and
nondiplomatic discussions would upset the constitutional balance
of ‘a workable government’ and gravely impair the role of the courts
under Article III.”
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Presidential Use and Abuse of Privileges Lecture 7
President Nixon had asserted only that confidentiality was generally
a good thing, not that the White House tapes were particularly in need
of confidentiality. Indeed, how could he, given that they disclosed his
own crimes? And so, the Court held that public interest in truth–in the
factual determination of a criminal investigation—was more important
than Nixon’s assertion of a privilege. Nevertheless, it left the door open for
future claims by future presidents.
In the end, Nixon knew that he’d made a mistake. Four days after he
produced the tapes that the Court ordered released, he resigned from office.
As he indicated in his memoirs, he understood that he had hurt not just
his own presidency, but potentially the presidencies of all who came after
him. He wrote, “I was the first president to test the principle of executive
privilege in the Supreme Court, and by testing it on such a weak ground…
I probably ensured the defeat of my cause.”