Last week the Gray Center for the Study of the Administrative State held a programentitled “Congress’s Interbranch Role: The Executive, the Court, and Dobbs.” The first panel focused on conflicts between Congress and the executive, particularly disputes over congressional access to information and executive privilege. The panel, consisting of three DOJ/OLC veterans (Professor Josh Chafetz, who was supposed to represent the congressional perspective on these issues, was unfortunately unable to make it), provided an excellent if somewhat executive-tilting overview of the issues in such disputes.
What struck me in listening was the divergence between the principles underlying standard executive branch doctrine on congressional oversight and the theory that a former president may assert executive privilege. Because the panel did not discuss executive privilege as it relates to former presidents, it is worth expounding on that divergence here.
As explained by Will Levi, who was chief of staff to Attorney General Barr in the Trump administration, the executive branch views executive privilege as consisting of four components: (1) presidential communications- communications between the president and senior staff, as well as communications between senior staff and subordinate officials (or even private citizens!) for purposes of formulating advice to the president; (2) deliberative process- predecisional communications in the departments and agencies or other lower levels of the executive branch; (3) law enforcement information (which often arises in the context of attempts to obtain access to investigative or open case files); and (4) state secrets- information related to national security and foreign policy. Levi noted that the presidential communications and deliberative process privileges were qualified privileges that could be overcome by a sufficient congressional showing of need, but he maintained that the law enforcement and state secrets privileges were “more absolute.”