Assertion of Executive Privilege Concerning the Dismissal and Replacement of U.S. Attorneys

Assertion of Executive Privilege Concerning the Dismissal

and Replacement of U.S. Attorneys

Executive privilege may properly be asserted over the documents and testimony concerning the

dismissal and replacement of U.S. Attorneys that have been subpoenaed by congressional commit-

tees.

June 27, 2007

THE PRESIDENT

THE WHITE HOUSE

Dear Mr. President:

The Senate Committee on the Judiciary and the House Committee on the Judi-

ciary recently issued five subpoenas in connection with their inquiries into the

resignation of several U.S. Attorneys in 2006. Broadly speaking, four of the five

subpoenas seek documents in the custody of current or former White House

officials (“White House documents”) concerning the dismissal and replacement of

the U.S. Attorneys. In addition, two of the five subpoenas demand testimony about

these matters from two former White House officials, Harriet Miers, former

Counsel to the President, and Sara Taylor, former Deputy Assistant to the

President and Director of Political Affairs.

You have requested my legal advice as to whether you may assert executive

privilege with respect to the subpoenaed documents and testimony concerning the

categories of information described in this letter. It is my considered legal

judgment that you may assert executive privilege over the subpoenaed documents

and testimony.

I.

The documents that the Office of the Counsel to the President has identified as

responsive to the subpoenas fall into three broad categories related to the possible

dismissal and replacement of U.S. Attorneys, including congressional and media

inquiries about the dismissals: (1) internal White House communications; (2)

communications by White House officials with individuals outside the Executive

Branch, including with individuals in the Legislative Branch; and (3) communica-

tions between White House officials and Department of Justice officials. The

Committees’ subpoenas also seek testimony from Ms. Miers and Ms. Taylor

concerning the same subject matters, and the assertion of privilege with respect to

such testimony requires the same legal analysis.

The Office of Legal Counsel of the Department of Justice has reviewed the

documents identified by the Counsel to the President as responsive to the sub-

poenas and is satisfied that the documents fall within the scope of executive

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Opinions of the Office of Legal Counsel in Volume 31

privilege. The Office further believes that Congress’s interests in the documents

and related testimony would not be sufficient to override an executive privilege

claim. For the reasons discussed below, I concur with both assessments.

A.

The initial category of subpoenaed documents and testimony consists of inter-

nal White House communications about the possible dismissal and replacement of

U.S. Attorneys. Among other things, these communications discuss the wisdom of

such a proposal, specific U.S. Attorneys who could be removed, potential

replacement candidates, and possible responses to congressional and media

inquiries about the dismissals. These types of internal deliberations among White

House officials fall squarely within the scope of executive privilege. One of the

underlying purposes of the privilege is to promote sound decisionmaking by

ensuring that senior government officials and their advisers speak frankly and

candidly during the decisionmaking process. As the Supreme Court has explained,

“[a] President and those who assist him must be free to explore alternatives in the

process of shaping policies and to do so in a way many would be unwilling to

express except privately.” United States v. Nixon, 418 U.S. 683, 708 (1974); see

also Assertion of Executive Privilege with Respect to Prosecutorial Documents, 25

Op. O.L.C. 1, 2 (2001) (“The Constitution clearly gives the President the power to

protect the confidentiality of executive branch deliberations.”); Assertion of

Executive Privilege With Respect to Clemency Decision, 23 Op. O.L.C. 1, 2 (1999)

(opinion of Attorney General Janet Reno) (“Clemency Decision”) (“[N]ot only

does executive privilege apply to confidential communications to the President,

but also to ‘communications between high Government officials and those who

advise and assist them in the performance of their manifold duties.’”) (quoting

Nixon, 418 U.S. at 705). These confidentiality interests are particularly strong

where, as here, the communications may implicate a “quintessential and nondele-

gable Presidential power,” such as the authority to nominate or to remove U.S.

Attorneys. In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997); Clemency

Decision, 23 Op. O.L.C. at 2–3 (finding that executive privilege protected

Department and White House deliberations related to decision to grant clemency).

Under D.C. Circuit precedent, a congressional committee may not overcome an

assertion of executive privilege unless it establishes that the documents and

information are “demonstrably critical to the responsible fulfillment of the

Committee’s functions.” Senate Select Comm. on Presidential Campaign Activi-

ties v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). And those functions

must be in furtherance of Congress’s legitimate legislative responsibilities. See

McGrain v. Daugherty, 273 U.S. 135, 160 (1927) (Congress has oversight

authority “to enable it efficiently to exercise a legislative function belonging to it

under the Constitution”).

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Assertion of Executive Privilege Concerning Dismissal of U.S. Attorneys

As a threshold matter, it is not at all clear that internal White House communi-

cations about the possible dismissal and replacement of U.S. Attorneys fall within

the scope of McGrain and its progeny. The Supreme Court has held that Con-

gress’s oversight powers do not reach “matters which are within the exclusive

province of one of the other branches of the Government.” Barenblatt v. United

States, 360 U.S. 109, 112 (1959). The Senate has the authority to approve or reject

the appointment of officers whose appointment by law requires the advice and

consent of the Senate (which has been the case for U.S. Attorneys since the

founding of the Republic), but it is for the President to decide whom to nominate

to such positions and whether to remove such officers once appointed. Though the

President traditionally consults with members of Congress about the selection of

potential U.S. Attorney nominees as a matter of courtesy or in an effort to secure

their confirmation, that does not confer upon Congress authority to inquire into the

deliberations of the President with respect to the exercise of his power to remove

or nominate a U.S. Attorney. 1 Consequently, there is reason to question whether

Congress has oversight authority to investigate deliberations by White House

officials concerning proposals to dismiss and replace U.S. Attorneys, because such

deliberations necessarily relate to the potential exercise by the President of an

authority assigned to him alone. See Clemency Decision, 23 Op. O.L.C. at 3–4

(“[I]t appears that Congress’ oversight authority does not extend to the process

employed in connection with a particular clemency decision, to the materials

generated or the discussions that took place as part of that process, or to the advice

or views the President received in connection with a clemency decision [because

the decision to grant clemency is an exclusive Executive Branch function].”);

Scope of Congressional Oversight and Investigative Power With Respect to the

Executive Branch, 9 Op. O.L.C. 60, 62 (1985) (congressional oversight authority

does not extend to “functions fall[ing] within the Executive’s exclusive domain”).

In any event, even if the Committees have oversight authority, there is no doubt

that the materials sought qualify for the privilege and the Committees have not

demonstrated that their interests justify overriding a claim of executive privilege as

to the matters at issue. The House Committee, for instance, asserts in its letter

accompanying the subpoenas that “[c]ommunications among the White House

staff involved in the U.S. Attorney replacement plan are obviously of paramount

importance to any understanding of how and why these U.S. Attorneys were

1

See, e.g., Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 483 (1989) (Kennedy, J., concurring)

(“[T]he Clause divides the appointment power into two separate spheres: the President’s power to

‘nominate,’ and the Senate’s power to give or withhold its ‘Advice and Consent.’ No role whatsoever is

given either to the Senate or to Congress as a whole in the process of choosing the person who will be

nominated for [the] appointment.”); Myers v. United States, 272 U.S. 52, 122 (1926) (“The power of

removal is incident to the power of appointment, not to the power of advising and consenting to

appointment, and when the grant of the executive power is enforced by the express mandate to take

care that the laws be faithfully executed, it emphasizes the necessity for including within the executive

power as conferred the exclusive power of removal.”).

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Opinions of the Office of Legal Counsel in Volume 31

selected to be fired.” Letter for Fred F. Fielding, Counsel to the President, from

John Conyers, Jr., Chairman, House Judiciary Committee at 2 (June 13, 2007). But

the Committees never explain how or why this information is “demonstrably

critical” to any “legislative judgments” Congress might be able to exercise in the

U.S. Attorney matter. Senate Select Comm., 498 F.2d at 732. Broad, generalized

assertions that the requested materials are of public import are simply insufficient

under the “demonstrably critical” standard. Under Senate Select Committee, to

override a privilege claim the Committees must “point[] to . . . specific legislative

decisions that cannot responsibly be made without access to [the privileged]

materials.” Id. at 733.

Moreover, any legitimate oversight interest the Committees might have in

internal White House communications about the proposal is sharply reduced by

the thousands of documents and dozens of hours of interviews and testimony

already provided to the Committees by the Department of Justice as part of its

extraordinary effort at accommodation. 2 This information has given the Commit-

tees extraordinary—and indeed, unprecedented—insight into the Department’s

decision to request the U.S. Attorney resignations, including the role of White

House officials in the process. See, e.g., History of Refusals by Executive Branch

Officials to Provide Information Demanded by Congress, 6 Op. O.L.C. 751, 758–

59, 767 (1982) (documenting refusals by Presidents Jackson, Tyler, and Cleveland

2

During the past three months, the Department has released or made available for review to the

Committees approximately 8,500 pages of documents concerning the U.S. Attorney resignations. The

Department has included in its productions many sensitive, deliberative documents related to the

resignation requests, including e-mails and other communications with White House officials. The

Committees’ staffs have also interviewed, at length and on the record, a number of senior Department

officials, including, among others, the Deputy Attorney General, the Acting Associate Attorney

General, the Attorney General’s former chief of staff, the Deputy Attorney General’s chief of staff, and

two former Directors of the Executive Office for U.S. Attorneys. During these interviews, the

Committees’ staffs explored in great depth all aspects of the decision to request the U.S. Attorney

resignations, including the role of White House officials in the decisionmaking process. In addition, the

Attorney General, the Deputy Attorney General, the Principal Associate Deputy Attorney General, the

Attorney General’s former chief of staff, and the Department’s former White House Liaison have

testified before one or both of the Committees about the terminations and explained, under oath, their

understanding of such involvement.

The President has also made significant efforts to accommodate the Committees’ needs. More than

three months ago, the Counsel to the President proposed to make senior White House officials,

including Ms. Miers, available for informal interviews about “(a) communications between the White

House and persons outside the White House concerning the request for resignations of the U.S.

Attorneys in question; and (b) communications between the White House and Members of Congress

concerning those requests,” and he offered to give the Committees access to White House documents

on the same subjects. Letter for Patrick Leahy, U.S. Senate, et al., from Fred F. Fielding, Counsel to the

President at 1–2 (Mar. 20, 2007). The Committees declined this offer. The Counsel to the President has

since reiterated this offer of accommodation but to no avail. See Letter for Patrick Leahy, U.S. Senate,

and John Conyers, Jr., U.S. House of Representatives, from Fred F. Fielding, Counsel to the President

at 1 (Apr. 12, 2007); Letter for Patrick Leahy, U.S. Senate, John Conyers, Jr., U.S. House of

Representatives, and Linda T. Sanchez, U.S. House of Representatives, from Fred F. Fielding, Counsel

to the President at 1–2 (June 7, 2007).

4

Assertion of Executive Privilege Concerning Dismissal of U.S. Attorneys

to provide information related to the decision to remove Executive Branch

officials, including a U.S. Attorney).

In a letter accompanying the subpoenas, the House Committee references the

alleged “written misstatements” and “false statements” provided by the Depart-

ment to the Committees about the U.S. Attorney dismissals. See Letter for Fred F.

Fielding, Counsel to the President, from John Conyers, Jr., Chairman, House

Judiciary Committee at 2 (June 13, 2007). The Department has recognized the

Committees’ interest in investigating the extent to which Department officials may

have provided inaccurate or incomplete information to Congress. This interest

does not, however, justify the Committees’ demand for White House documents

and information about the U.S. Attorney resignations. Officials in the Department,

not officials in the White House, presented the challenged statements, and as

noted, the Department has provided unprecedented information to Congress

concerning, inter alia, the process that led to the Department’s statements. The

Committees’ legitimate oversight interests therefore have already been addressed

by the Department, which has sought to provide the Committees with all docu-

ments related to the preparation of any inaccurate information given to Congress.

Given the amount of information the Committees already possess about the

Department’s decision to remove the U.S. Attorneys (including the involvement of

White House officials), there would be little additional legislative purpose served

by revealing internal White House communications about the U.S. Attorney

matter, and, in any event, none that would outweigh the President’s interest in

maintaining the confidentiality of such internal deliberations. See Senate Select

Comm., 498 F.2d at 732–33 (explaining that a congressional committee may not

obtain information protected by executive privilege if that information is available

through non-privileged sources). Consequently, I do not believe that the Commit-

tees have shown a “demonstrably critical” need for internal White House commu-

nications on this matter.

B.

For many of the same reasons, I believe that communications between White

House officials and individuals outside the Executive Branch, including with

individuals in the Legislative Branch, concerning the possible dismissal and

replacement of U.S. Attorneys, and possible responses to congressional and media

inquiries about the dismissals, fall within the scope of executive privilege. Courts

have long recognized the importance of information gathering in presidential

decisionmaking. See, e.g., In re Sealed Case, 121 F.3d at 751–52 (describing role

of investigation and information collection in presidential decisionmaking).

Naturally, in order for the President and his advisers to make an informed

decision, presidential aides must sometimes solicit information from individuals

outside the White House and the Executive Branch. This need is particularly

strong when the decision involved is whether to remove political appointees, such

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Opinions of the Office of Legal Counsel in Volume 31

as U.S. Attorneys, who serve in local districts spread throughout the United States.

In those situations, the President and his advisers will be fully informed only if

they solicit and receive advice from a range of individuals. Yet the President’s

ability to obtain such information often depends on the provider’s understanding

that his frank and candid views will remain confidential. See Nixon, 418 U.S. at

705 (“Human experience teaches that those who expect public dissemination of

their remarks may well temper candor with a concern for appearances and for their

own interests to the detriment of the decisionmaking process.”); In re Sealed Case,

121 F.3d at 751 (“In many instances, potential exposure of the information in the

possession of an adviser can be as inhibiting as exposure of the actual advice she

gave to the President. Without protection of her sources of information, an adviser

may be tempted to forego obtaining comprehensive briefings or initiating deep and

intense probing for fear of losing deniability.”).

That the communications involve individuals outside the Executive Branch

does not undermine the President’s confidentiality interests. The communications

at issue occurred with the understanding that they would be held in confidence,

and they related to decisionmaking regarding U.S. Attorney removals or replace-

ments or responding to congressional or media inquiries about the U.S. Attorney

matter. Under these circumstances, the communications retain their confidential

and Executive Branch character and remain protected. See In re Sealed Case, 121

F.3d at 752 (“Given the need to provide sufficient elbow room for advisers to

obtain information from all knowledgeable sources, the [presidential communica-

tions component of executive] privilege must apply both to communications which

these advisers solicited and received from others as well as those they authored

themselves.”). 3

Again, the Committees offer no compelling explanation or analysis as to why

access to confidential communications between White House officials and

individuals outside the Executive Branch is “demonstrably critical to the responsi-

ble fulfillment of the [Committees’] functions.” Senate Select Comm., 498 F.2d at

731. Absent such a showing, the Committees may not override an executive

privilege claim.

C.

The final category of documents and testimony concerns communications

between the Department of Justice and the White House concerning proposals to

dismiss and replace U.S. Attorneys and possible responses to congressional and

media inquiries about the U.S. Attorney resignations. These communications are

3

Moreover, the Department has previously conveyed to the Committees its concern that there

would be a substantial inhibiting effect on future informal confidential communications between

Executive Branch and Legislative Branch representatives if such communications were to be produced

in the normal course of congressional oversight.

6

Assertion of Executive Privilege Concerning Dismissal of U.S. Attorneys

deliberative and clearly fall within the scope of executive privilege. 4 See supra

p. 2. In this case, however, the Department has already disclosed to Congress a

substantial amount of documents and information related to White House commu-

nications about the U.S. Attorney matter. Consequently, in assessing whether it

would be legally permissible to assert executive privilege, it is useful to divide this

category into three subcategories, each with slightly different considerations: (1)

documents and testimony related to communications between the Department and

White House officials that have not already been disclosed by the Department; (2)

documents concerning White House-Department communications previously

disclosed to the Committees by the Department; and (3) testimony from current or

former White House officials (such as the testimony sought from Ms. Miers or Ms.

Taylor) about previously disclosed White House-Department communications.

After carefully considering the matter, I believe there is a strong legal basis for

asserting executive privilege over each of these subcategories.

The President’s interest in protecting the confidentiality of documents and

information about undisclosed White House-Department communications is

powerful. Most, if not all, of these communications concern either potential

replacements for the dismissed U.S. Attorneys or possible responses to inquiries

from Congress and the media about the U.S. Attorney resignations. As discussed

above, the President’s need to protect deliberations about the selection of U.S.

Attorneys is compelling, particularly given Congress’s lack of legislative authority

over the nomination or replacement of U.S. Attorneys. See In re Sealed Case, 121

F.3d at 751–52. The President also has undeniable confidentiality interests in

discussions between White House and Department officials over how to respond

to congressional and media inquiries about the U.S. Attorney matter. As Attorney

General Janet Reno advised the President in 1996, the ability of the Office of the

Counsel to the President to assist the President in responding to investigations

“would be significantly impaired” if a congressional committee could review

“confidential documents . . . prepared in order to assist the President and his staff

in responding to an investigation by the [committee] seeking the documents.”

Assertion of Executive Privilege Regarding White House Counsel’s Office

Documents, 20 Op. O.L.C. 2, 3 (1996). Despite extensive communications with

officials at the Department and the White House, the Committees have yet to

articulate any “demonstrably critical” oversight interest that would justify

overriding these compelling confidentiality concerns.

There are also legitimate reasons to assert executive privilege over White

House documents reflecting White House-Department communications that have

been previously disclosed to the Committees by the Department. As discussed,

4

To the extent they exist, White House communications approving the Department’s actions by or

on behalf of the President would receive particularly strong protection under executive privilege. See,

e.g., In re Sealed Case, 121 F.3d at 752–53 (describing heightened protection provided to presidential

communications).

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Opinions of the Office of Legal Counsel in Volume 31

these documents are deliberative in nature and clearly fall within the scope of

executive privilege. The Department’s accommodation with respect to some White

House-Department communications does not constitute a waiver and does not

preclude the President from asserting executive privilege with respect to White

House materials or testimony concerning such communications. The D.C. Circuit

has recognized that each branch has a “constitutional mandate to seek optimal

accommodation” of each other’s legitimate interests. United States v. AT&T Co.,

567 F.2d 121, 127 (D.C. Cir. 1977). If the Department’s provision of documents

and information to Congress, as part of the accommodation process, eliminated the

President’s ability to assert privilege over White House documents and infor-

mation concerning those same communications, then the Executive Branch would

be hampered, if not prevented, from engaging in future accommodations. Thus, in

order to preserve the constitutional process of interbranch accommodation, the

President may claim privilege over documents and information concerning the

communications that the Department of Justice has previously disclosed to the

Committees. Indeed, the relevant legal principles should and do encourage, rather

than punish, such accommodation by recognizing that Congress’s need for such

documents is reduced to the extent similar materials have been provided voluntari-

ly as part of the accommodation process.

Here, the Committees’ need for White House documents concerning these

communications is weak. The Committees already possess the relevant communi-

cations, and it is well established that Congress may not override executive

privilege to obtain materials that are cumulative or that could be obtained from an

alternative source. See Senate Select Comm., 498 F.2d at 732–33 (holding public

release of redacted audio tape transcripts “substantially undermined” any legisla-

tive need for tapes themselves); Clemency Decision, 23 Op. O.L.C. at 3–4 (finding

that documents were not demonstrably critical where Congress could obtain

relevant information “through non-privileged documents and testimony”).

Accordingly, the Committees do not have a “demonstrably critical” need to collect

White House documents reflecting previously disclosed White House-Department

communications.

Finally, the Committees have also failed to establish the requisite need for

testimony from current or former White House officials about previously disclosed

White House-Department communications. Congressional interest in investigating

the replacement of U.S. Attorneys clearly falls outside its core constitutional

responsibilities, and any legitimate interest Congress may have in the disclosed

communications has been satisfied by the Department’s extraordinary accommo-

dation involving the extensive production of documents to the Committees,

interviews, and hearing testimony concerning these communications. As the D.C.

Circuit has explained, because “legislative judgments normally depend more on

the predicted consequences of proposed legislative actions and their political

acceptability,” Congress will rarely need or be entitled to a “precise reconstruction

of past events” to carry out its legislative responsibilities. Senate Select Comm.,

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Assertion of Executive Privilege Concerning Dismissal of U.S. Attorneys

498 F.2d at 732. 5 On the other hand, the White House has very legitimate interests

in protecting the confidentiality of this information because it would be very

difficult, if not impossible, for current or former White House officials testifying

about the disclosed communications to separate in their minds knowledge that is

derived from the Department’s disclosures from knowledge that is derived from

other privileged sources, such as internal White House communications. Conse-

quently, given the President’s strong confidentiality interests and the Committees’

limited legislative needs, I believe that White House information about previously

disclosed White House-Department communications may properly be subject to an

executive privilege claim.

II.

In sum, I believe that executive privilege may properly be asserted with respect

to the subpoenaed documents and testimony as described above.

PAUL D. CLEMENT

Solicitor General & Acting Attorney General

5

See also Senate Select Comm., 498 F.2d at 732 (explaining that Congress “frequently legislates on

the basis of conflicting information provided in its hearings”); Congressional Requests for Confidential

Executive Branch Information, 13 Op. O.L.C. 153, 159 (1989) (“Congress will seldom have any legiti-

mate legislative interest in knowing the precise predecisional positions and statements of particular

executive branch officials.”).

9