ArtII.S3.4.8 Separation of Powers and Communications Privilege

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In 2004, the Supreme Court issued Cheney v. United States District Court1 in which it reaffirmed distinctions first articulated in the Nixon-era cases between civil and criminal proceedings and expounded on the relationship between the Communications Privilege and the separation of powers.

The Cheney decision interacted with the Communications Privilege in a complicated procedural posture, and for this reason the implications of the decision to more traditional scenarios, especially to the congressional context, are difficult to discern. In Cheney, a federal district court had entered orders in a Federal Advisory Committee Act (FACA) lawsuit allowing discovery of documents relating to the structure and operation of the National Energy Policy Development Group (NEPDG), a task force chaired by the Vice President and established to give policy recommendations on energy issues to the President.2 The George W. Bush Administration, though not asserting executive privilege, challenged that discovery order on the ground that it represented a “substantial intrusion[ ] on the process by which those in closest operational proximity to the President advise the President” in violation of the separation of powers.3 The district court and the D.C. Circuit rejected the Administration’s arguments, mainly because the Administration had another means to protect its interests; it could assert executive privilege in response to the civil discovery subpoena.4

The Supreme Court reversed, holding that when a lower court has allowed “unnecessarily broad” discovery, reviewing courts have authority to “explore other avenues, short of forcing the Executive to invoke privilege.” 5 The Court reasoned that to require the Executive Branch to assert the Communications Privilege in such a scenario would ignore the “weighty separation of powers objections raised in the case,” because “[o]nce executive privilege is asserted, coequal branches of the Government are set on a collision course.” 6 The Court determined that the lower courts had “labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government’s separation of powers objections.” 7 Cheney, therefore, appears to suggest that there are separation of powers concerns associated with executive confidentiality issues that attach even before executive privilege is asserted.8

Cheney also reaffirmed the principle that the confidentiality interests associated with the Communications Privilege are weighed differently in different types of proceedings. In fact, the nature of the proceeding, whether civil or criminal, appears to affect both sides of the judicially developed balancing test. As for the requesting party, the Court held that “[t]he need for information for use in civil cases, while far from negligible, does not share the urgency or significance of [a] criminal subpoena,” where the need for the information “is much weightier.” 9 As for the President’s interest, the court viewed the potential for a civil subpoena to disrupt the functioning of the Executive Branch as far greater than a criminal subpoena. In the criminal context, “there are various constraints . . . to filter out insubstantial legal claims,” but “there are no analogous checks in the civil discovery process.” 10 Like past cases, however, Cheney did not address how a congressional proceeding relates to either civil or criminal proceedings.11

Cheney v. U.S. Dist. Ct., 542 U.S. 367, 383–91 (2004) back
Id. at 376. back
Id. at 381. That action was in the form of mandamus, which among other things requires a party to show that there is “no other adequate means to attain the relief” desired. Id. at 403. back
Id. at 376–77. back
Id. at 390. back
Id. at 391, 389. back
Cheney, 542 U.S. at 391. back
Id. at 385 (noting that “special considerations control when the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated.” ). See also, Karnoski v. Trump, 926 F.3d 1180, 1205–06 (9th Cir. 2019). back
Cheney, 542 U.S. at 384. back
Id. at 386 (noting that in the criminal system decisions are made by a “publicly accountable prosecutor subject to budgetary considerations” and subject to the “responsible exercise of prosecutorial discretion” ). back
The Supreme Court did appear to draw a distinction between the criminal process and the legislative process in Trump v. Mazars USA, LLP, No. 19-715 (U.S. May 12, 2020) ( “Unlike in criminal proceedings, where '[t]he very integrity of the judicial system’ would be undermined without ‘full disclosure of all the facts,’ efforts to craft legislation involve predictive policy judgments that are ‘not hamper[ed] . . . in quite the same way’ when every scrap of potentially relevant evidence is not available. While we certainly recognize Congress’s important interests in obtaining information through appropriate inquiries, those interests are not sufficiently powerful to justify access to the President’s personal papers when other sources could provide Congress the information it needs.” ) (citations omitted). back