What Is a ‘Protective’ Assertion of Executive Privilege?

Jonathan Shaub
Wednesday, May 8, 2019, 8:23 PM

As widely reported, President Trump has formally asserted executive privilege in response to the House judiciary committee’s plan to hold Attorney General William Barr in

President Bill Clinton with Vice President Al Gore and Attorney General Janet Reno. (Source: Library of Congress)

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As widely reported, President Trump has formally asserted executive privilege in response to the House judiciary committee’s plan to hold Attorney General William Barr in contempt of Congress for failing to comply with the committee’s subpoena seeking the full, unredacted Mueller report and the underlying documents. The Department of Justice attempted to hold off the contempt vote and potentially obviate the need for a privilege assertion in a letter on Tuesday, asking the committee to hold the subpoena in “abeyance” while the president considered executive privilege and refrain from voting on contempt. But the committee proceeded to the contempt vote anyway. And Trump formally invoked executive privilege in response to a letter from Barr requesting him to do so.

The assertion of privilege is not an actual “conclusive” assertion of executive privilege; it is only a “protective” assertion. As the Department of Justice’s letter to the committee explained, “this protective assertion of executive privilege ensures the President’s ability to make a final decision whether to assert privilege following a full review of these materials.” In other words, the president has asserted executive privilege in order to be able to determine whether to assert executive privilege. What does that even mean? And why would the administration take such an action? A bit of background helps explain what is really happening here.

First, it is important to note the extent of the material that the subpoena demands—and, correspondingly, the protective assertion of privilege covers. Although headlines simplify the matter as “Trump asserts executive privilege over Mueller report,” or something similar, the assertion is actually much, much broader. The subpoena issued by the committee demands three things: 1) “The complete and unredacted version” of the Mueller report, including “all summaries, exhibits, indices, tables of contents or other tables or figures, appendices, supplements, addenda, or any other attachments”; 2) “All documents referenced in the Report”; and 3) “All documents obtained and investigative materials created by the Special Counsel’s office.” That is undoubtedly an enormous amount of information; the Barr letter requesting the protective assertion indicates that the subpoena covers “millions of pages of classified and unclassified documents bearing upon more than two dozen criminal cases and investigations, many of which are ongoing.”

As I and others have explained, only certain categories of information fall within the scope of executive privilege. In general, those categories are presidential communications, sensitive law enforcement information, internal deliberations, confidential national security or diplomatic information (including classified information), and attorney-client information. Given that the special counsel’s investigation included criminal and counterintelligence components, it is not surprising that Barr’s letter suggests the subpoenaed materials “include law enforcement information, information about sensitive intelligence sources and methods.” The special counsel’s office assisted in making redactions to protect this type of material, which implicates the law enforcement and national security information components of executive privilege. Some of the categories of redacted material, however, do not fall within traditional executive privilege components. In particular, grand jury material has never itself been considered a component of executive privilege. And redactions to protect the “privacy” of particular individuals do not neatly fit within any of those traditional components, though the department has suggested in the past that it “takes very seriously its responsibility to respect the privacy interests of individuals about whom information is developed during the law enforcement process or litigation.”

For an actual, as opposed to “protective,” assertion of executive privilege, the attorney general would need to write an opinion concluding that all of the withheld material falls within the scope of executive privilege. Barr’s letter to the president and the department’s letters to the committee all cite President Clinton’s 1996 protective assertion of executive privilege as precedent for their actions. About two weeks after that protective assertion, Attorney General Janet Reno issued an opinion advising the president he had the legal authority to formally assert privilege over particular documents because “[t]he Office of Legal Counsel of the Department of Justice has reviewed the documents for which assertion of executive privilege has been recommended and is satisfied that they fall within the scope of executive privilege. I concur in that assessment.” Assertions of executive privilege in 2008, 2007 and 1996, among others, similarly state that the Office of Legal Counsel (OLC) had reviewed the specific documents that would be subject to the claim and concluded that an assertion was permissible. Here, Barr would presumably need to write a similar opinion to justify an assertion of privilege over some of the subpoenaed materials. In that opinion, he would need to explain how the specific documents or information or categories of documents or information withheld each fit within the traditional components of executive privilege.

Moreover, executive privilege is not an absolute privilege; it is a qualified one. And the balancing of Congress’s need for the information against the executive branch’s confidentiality interests typically occurs with respect to each document or specific category of document withheld. As a result, executive privilege has historically been asserted over specific, identified documents. In the 1996 formal assertion example, for instance, the counsel to the president “identified the specific White House Counsel’s Office documents with respect to which he recommend[ed] that [the president] assert privilege,” and listed those documents on an index that was attached to the attorney general’s opinion (emphasis added). The Fast & Furious claim of executive privilege similarly identified a subset of the documents that were responsive to the broad subpoena—namely “documents from after February 4, 2011” related to the Department of Justice’s response to oversight—and asserted privilege only over those documents, which the opinion asserted were the only basis for the contempt vote. The executive branch considered that entire subset of documents to be protected by executive privilege because they represented the department’s response to congressional oversight, an area that the executive branch analogizes to the work-product privilege and feels is categorically protected from additional congressional oversight. In the ensuing litigation, the committee contested that the contempt vote had been so limited and sought all documents responsive to the subpoena. And the district court rejected the department’s categorical position in the subsequent litigation, instead requiring the executive branch to identify the specific documents and portions of documents that were protected under the deliberative process component or another component of executive privilege, such as law enforcement information.

In short, a formal executive privilege claim requires scrutiny of the precise documents and information withheld to determine whether 1) that material fits within a component of executive privilege and 2) Congress’s need for the information is not sufficiently weighty to overcome the privilege. Each attorney general opinion supporting an assertion goes through that analysis. But such an analysis is undoubtedly time-consuming, particularly if each document or piece of information must be reviewed for the existence of information fitting within multiple components of executive—for example, material might be covered as internal deliberations, law enforcement information and national security information. Various divisions and entities within the Department of Justice and the executive branch more broadly would need to consider the information to determine whether it could be released or not, particularly with respect to classified information.

That is where the idea of a “protective” assertion of privilege comes in. As the 1996 letter from Reno explains, the protective assertion gives the president and attorney general time to make a decision “as to which specific documents are deserving of a conclusive claim of executive privilege.” As I have explained in the context of testimony, this general principle animates the kind of “non-assertion assertion” of executive privilege in which executive branch officials often engage. They reference “executive privilege” as the basis for not responding to a question, but there has been no assertion of privilege—protective or otherwise. The reason they decline to respond, however, is to preserve the president’s authority to decide whether to assert or to waive the privilege. The subordinate officials lack authority, on their own, to make that decision.

With respect to documents, this explicit non-assertion assertion is not typically required at the outset. As a declaration submitted by the Justice Department in the Fast & Furious litigation describes, and as John Bies has explained on Lawfare, the executive branch does not consider the “return date” of a subpoena—that is, the date by which the recipient must comply—to be binding. Even after the return date passes, the executive branch continues to withhold information that implicates its “confidentiality interests,” generally used as a less confrontational euphemism for information protected by executive privilege, and continues to negotiate with the committee about its document demands. At times, of course, the executive branch will specifically mention executive privilege—as it did in its last-ditch effort to get the judiciary committee to postpone Barr’s contempt vote—and argue that it cannot turn over subpoenaed information because it needs time to consider executive privilege. A 1982 memorandum from President Reagan, which has remained in effect across administrations of both parties, contemplates asking a committee to hold its subpoena in “abeyance” until the president can make a formal determination—which is what the Justice Department has done regarding the Mueller report and underlying material.

Such a request puts a committee in a bind, however. A non-assertion assertion is just that: a non-assertion. In other words, the executive branch has not formally indicated it will not comply or asserted its constitutional privilege. But at the same time, it has not complied nor indicated that it will comply. The committee may rightly regard this as a stall tactic and believe further negotiations would be fruitless, particularly when evidence suggests the administration will “fight all subpoenas.” These are the circumstances that led to Wednesday’s contempt vote against Barr.

If an administration can delay in this informal way and continually indicate it needs more time to consider executive privilege, why would it need to make a formal, protective assertion of executive privilege on the basis that it needs more time? The reason actually has nothing to do with documents or privileges themselves. It is solely a function of executive branch precedent regarding the criminal contempt of Congress statute, 2 U.S.C. §§ 192, 194. Existing OLC precedent holds that “the criminal contempt of Congress statute does not apply to executive officials who assert claims of executive privilege at the direction of the President.” Accordingly, the executive branch does not prosecute executive branch officials held in contempt of Congress, despite the use of “shall” by the contempt statute. But that position—to date, at least—applies only to executive branch officials acting pursuant to a presidential assertion of privilege. When Congress indicates it will formally consider contempt charges against an official, then, the executive branch must act. Either the president must assert executive privilege—thereby immunizing the official from contempt—or the executive branch must comply with the subpoena’s demands.

A protective assertion of executive privilege offers a third way out. Its use here may represent another incremental step in the ongoing dispute between the branches over their respective constitutional authorities in the context of oversight, a evolutionary process I have previously described in the context of deposition subpoenas. A protective assertion of privilege relieves the executive branch official—here, Barr—from any concerns about contempt, but it also eliminates, at least temporarily, the need to weigh privilege for each individual document. After the 1996 protective assertion, the president formally asserted privilege about two weeks later. But, as a theoretical matter, it’s not readily apparent that the Trump administration would need to act that quickly in this case, assuming it could; nor that it would feel that it is required to ever formally follow up the protective assertion with a conclusive assertion of executive privilege.

Barr would be the second attorney general in history to be held in contempt. If Congress begins to utilize contempt more frequently, protective assertions of executive privilege could be weaponized in response—an additional tool the executive branch can use to delay and defer oversight demands and push Congress into potentially long, protracted court battles. If utilized in that way, protective assertions of privilege would be a powerful weapon, providing the executive branch a backdoor way to assert privilege over information that does not necessarily fall within the traditional components of executive privilege. The “protective” assertion protects all the documents during the period of consideration, relieving the executive branch of the need to justify the withholding of any particular document or piece of information, such as the privacy information redacted from the Mueller report. This is only the second instance of a public, protective assertion of executive privilege. But it may very well become more common.

In this way, a protective assertion of executive privilege is no different in substance than the common non-assertion assertions that occur during testimony or in response to document requests. It asserts that some of the subpoenaed documents likely or, here, in Barr’s words, “assuredly,” fall within the scope of executive privilege but that the executive branch has not yet decided whether to formally assert privilege. As Barr puts it, the judiciary committee did “not allowed sufficient time” for the president to consider whether to make a “conclusive assertion” of executive privilege.

The use of this protective assertion has important ramifications for oversight, ramifications Congress would be wise to consider if it wants to enforce its constitutional authority going forward. Given the nature and breadth of the information sought in this particular subpoena, it seems quite legitimate that the executive branch would need a significant amount of time to go through and analyze its need for confidentiality in the subpoenaed documents. The Supreme Court has repeatedly recognized the need for confidentiality in national security information, for example. And courts embroiled in these interbranch information disputes have often advised the branches to work it out through compromise and negotiation, recognizing the validity of both branches’ interests.

The committee’s subpoena essentially demands every document that went through or was generated by the special counsel’s office. Given that the special counsel himself indicated that redactions needed to be made to the public report to protect ongoing law enforcement matters and classified information, it seems certain that at least some of the investigative materials on which the report was based contain similar information. Once that information is released to Congress, the executive branch has no means to prevent its public disclosure or release. Accordingly, executive branch officials—most likely career officials—from multiple agencies will need to scrutinize each document to determine whether it contains sensitive information. Only then, with an understanding of what material subject to the subpoena is potentially protected by privilege, will executive branch officials and the president decide whether to conclusively assert privilege and, if so, over which documents to assert it.

A broad subpoena thus enables a protective assertion of privilege, as does an expedited timeline to contempt. Congress, confronted with a historically recalcitrant administration, understandably wants to accelerate the process, given how long the inevitable court battles may take, by requesting all responsive documents and rapidly establishing a record of noncompliance to take to a court. But if committees quickly accelerate toward contempt while also demanding a broad swath of documents—some of which clearly implicate legitimate confidentiality interests of the executive branch—they hand the executive branch a readymade excuse for noncompliance. What’s more, the “protective” assertion of executive privilege excuses that noncompliance for all practical purposes, given the executive branch’s responsibility for prosecuting contempt.

Accordingly, committees that want to vindicate their constitutional authority would be better advised to use their subpoena power to seek specific documents or information over which privilege claims may be weakest. At least they should limit the scope of subpoenas so that the executive branch could not reasonably claim it did not have time to consider whether to assert privilege over the subpoenaed documents before the contempt vote.

Had the judiciary committee’s subpoena here been limited to the Mueller report itself, the constitutional argument for a protective assertion of privilege would be considerably weaker. The executive branch has already reviewed all of those redactions and presumably knows what information they contain. A claim of executive privilege would have to explain 1) why the information protected by those redactions fits within the existing scope of executive privilege and 2) why Congress’s need for that information did not overcome the privilege. Those explanations would not be easy for the executive branch to produce, and because the resulting executive privilege claim would be specific and limited, it would be easier for Congress to litigate the matter quickly in court.

As it stands, the broad subpoena and resulting, speedy contempt vote have allowed the executive branch to utilize President Clinton’s precedent of a protective assertion of privilege. The judiciary committee has permitted the executive branch to avoid the most difficult choice it faces in these oversight disputes: whether, once push has come to shove and the committee has indicated it will consider contempt, to formally assert executive privilege. Even better, the committee has provided the executive branch with an excuse to avoid explaining the legal basis for claiming the privilege over specific documents or information.

Jonathan Shaub is a contributing editor to Lawfare and an assistant professor of Law at the University of Kentucky J. David Rosenberg College of Law. He formerly served in the U.S. Department of Justice as an attorney-adviser in the Office of Legal Counsel and as a Bristow Fellow in the Solicitor General's Office.

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