Executive Privilege Primer

Executive privilege (also known as “deliberative process privilege” protects confidential pre-decisional communications such as recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. The privilege is based on the notion that an assurance of confidentiality will promote “candid discussion between officials.” As the Supreme Court has stated, “The point is not to protect Government secrecy pure and simple.” DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (U.S. 2001). The deliberative process privilege shields only those communications designed to assist an agency policy-maker in arriving at a decision and which are actually related to the policy formulation process.

For a particular document or communication to be protected by the privilege, the agency must demonstrate that the document is both “predecisional” and “deliberative.” The document must be predecisional, that is, prepared in order to assist an agency policy-maker in arriving at a decision. Second, the document must be deliberative, that is, actually related to the process by which policies are formulated. The privilege does not cover procedures or implementation strategy or individual cases (including personnel decisions). It covers policy.

To demonstrate that a document is predecisional, an agency must: (i) pinpoint the specific decision to which the document correlates, (ii) establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision, and (iii) verify that the document precedes, in temporal sequence, the decision to which it relates.

Documents that are purely factual are not protected by executive privilege. Mere instructions to subordinate officials as to the implementation of policy are not privileged either. Just because a document satisfies these requirements, however, it does not mean that the deliberative process privilege bars its disclosure. An agency may be required to disclose a document otherwise entitled to protection if the agency has chosen expressly to adopt or incorporate by reference a memorandum previously covered by the privilege in a final rule or opinion.
As with the attorney-client privilege, it is the burden of the party raising the deliberative process privilege to demonstrate its applicability. Finally, the deliberative process does not protect third-party documents submitted in connection with an agency decision, unless the third party is acting an agent of the government. The privilege is waived under certain circumstances if the documents have been disclosed to a third party that is not within the agency.

The Justice Department and the TLC

The emerging Justice Department scandal regarding the politicized firing of U.S. Attorneys is reminiscent of the Taxi & Limousine Commission, both in terms of Operation Refusal and the TLC's summary suspensions.

My class action lawsuit about a Giuliani's Operation Refusal-- suspending the licenses of cab drivers illegally based on phony, politicized charges (together with the attempt to revoke those licenses). This was obviously a big-deal for the cabbies, but a yawn for even the local beat reporters. This was despite the politicization of the agency and the corruption of the judges.

The cabbies had no real defense, and only the class action rules allowed them to sue after the fact. When the city was required to pay $7 million in damages, it got a little ink, but not much.

The lesson is that small injustices are very easy to hide.

Paul Krugman makes this point very well.