Presidents Are Not Kings

In a 39-page ruling, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia held that the ex-president cannot keep documents away from lawmakers when the incumbent president agrees they should see the files.

Plaintiff does not acknowledge the deference owed to the incumbent President's judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power "exists in perpetuity." But Presidents are not kings, and Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President 'is not constitutionally obliged to honor' that assertion. Public Citizen v. Burke, 843 F.2d 1473, 1479 (D.C. Cir. 1988)  Plaintiff is no longer situated to protect executive branch interestswith “the information and attendant duty of executing the laws in the light of current facts and circumstances.” Dellums, 561F.2d at 247. And he no longer remains subject to political checks against potential abuse of that power. Nixon v. GSA, 433 U.S. at 448

Contempt of Congress

CNN reports on a dispute between the House and Attorney General Eric Holder:

The House Oversight and Government Reform Committee recommended Wednesday that Holder be cited for contempt of Congress for failing to turn over documents relating to the botched Fast and Furious weapons sting operation. The committee measure now goes to the full House for consideration. The vote ended an extraordinary daylong hearing that took place after President Barack Obama asserted executive privilege over some documents sought by the panel investigating Fast and Furious. The White House move means the Department of Justice can withhold some of the documents.

The Congressional Research Service provides background on contempt of Congress:

Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

A number of obstacles face Congress in any attempt to enforce a subpoena issued against an executive branch official. Although the courts have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most, circumstances. Where the official refuses to disclose information pursuant to the President’s decision that such information is protected under executive privilege, past practice suggests that the Department of Justice (DOJ) will not pursue a prosecution for criminal contempt. In addition, although it appears that Congress may be able to enforce its own subpoenas through a declaratory civil action, relying on this mechanism to enforce a subpoena directed at an executive official may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case. Although subject to practical limitations, Congress retains the ability to exercise its own constitutionally based authorities to enforce a subpoena through inherent contempt.

CRS also provides background on executive privilege:

Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution, the vast majority achieving resolution through political negotiation and accommodation. In fact, it was not until the Watergate-related lawsuits in the 1970’s seeking access to President Nixon’s tapes that the existence of a presidential confidentiality privilege was judicially established as a necessary derivative of the President’s status in our constitutional scheme of separated powers. Of the nine court decisions involving interbranch or private information access disputes, four have involved Congress and the Executive. Two of these resulted in decisions on the merits. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege. Under those precedents, the privilege, which is constitutionally rooted, could be invoked by the President when asked to produce documents or other materials or information that reflect presidential decisionmaking and deliberations that he believes should remain confidential. If the President does so, the materials become presumptively privileged. The privilege, however, is qualified, not absolute, and can be overcome by an adequate showing of need. Finally, while reviewing courts have expressed reluctance to balance executive privilege claims against a congressional demand for information, they have acknowledged they will do so if the political branches have tried in good faith but failed to reach an accommodation.

Elena Kagan and Executive Privilege

Elena Kagan, President Obama's nominee to the Supreme Court, has served in the executive branch. To what extent are documents from her service subject to executive privilege. At the Center for American Progress, Ian Millhiser explains two kinds of executive privilege. The strong form, presidential communications privilege, applies to communications made directly to the president or the president's immediate staff. Millhiser explains the other form:

The weaker form of executive privilege is known as the “deliberative process privilege,” which applies to discussions among executive branch officials that are part of the government’s decision-making process. This privilege can apply to executive branch officials outside of the president’s inner circle, but it is both more limited in scope and easier to overcome.

As Judge Patricia Wald explained in the seminal Espy case, “[t]he deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the governments deliberations.”

General Kagan served as an attorney and policy advisor on President Clinton’s White House staff, and a substantial amount of the work she produced during that service will therefore be subject to the stronger presidential communications privilege. Documents related to her White House service are therefore unlike documents produced by Chief Justice John Roberts or Justice Samuel Alito during their time at the Department of Justice—which, at best, could only be subject to the weaker deliberative process privilege. (The documents Roberts produced during his tenure in the Office of White House Counsel, of course, may be subject to the presidential communications privilege.)