Assertion of Executive Privilege in Response to a Congressional Subpoena

Assertion of Executive Privilege in Response to a
Congressional Subpoena

Executive privilege can and should be asserted to withhold deliberative, predecisional
documents from Congress, where release of the documents would seriously impair the
deliberative process and the conduct o f foreign policy, and where Congress’ only stated
interest in obtaining the documents is for general oversight purposes.
W here Congress has a legitimate need for information that will help it legislate, and the
Executive Branch has a legitimate constitutionally recognized need to keep information'
confidential, each branch has an obligation to make a principled effort to accommodate
the needs o f the other.

October 13, 1981

T h e P r e s id e n t
T h e W h it e H o u se

D e a r M r . P r e s i d e n t : Y o u have requested my advice concerning
the propriety of an assertion of executive privilege in response to a
subpoena issued by the Subcommittee on Oversight and Investigations
of the House Committee on Energy and Commerce (Subcommittee).
The subpoena was issued on September 28, 1981, and served on the
Department of the Interior on October 2, 1981.* It demands the pro­
duction of certain documents by October 14, 1981. It seeks “[a]ll docu­
ments relative to the determination of reciprocity under the Mineral
Lands Leasing Act, 30 U.S.C. § 181, including documents relating to
the general matter of reciprocity and the specific question of the status
of Canada, utilized or written by officials and staff of the Department
of Interior on or before September 18, 1981.” 1 The Office of Legal
Counsel of the Department of Justice has examined documents em­
braced by the subpoena and identified by the Department of the Inte­
rior as being potentially subject to a claim of executive privilege, and
has concluded that a proper claim of privilege may be asserted with
respect to all of the documents identified in the attachment hereto. I

• N o t e : The full text of the subpoena and related correspondence can be found in Contempt o f
Congress: Hearings on the Congressional Proceedings Against Interior Secretary James G. Watt Before the
Subcommittee on Oversight and Investigation o f the House Committee on Energy and Commerce, 97th
Cong., 2d Sess. (1982). Ed
1The Mineral Lands Leasing Act (Act) provides, in pertinent part, that "citizens of another
country, the laws, customs or regulations of which deny similar or like privileges to citizens of this
country, shall not by stock ownership, stock holding, or stock control, own any interest in any lease
acquired under the provisions o f this Act ” 30 U.S.C. § 181.

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concur in that conclusion. I believe that the documents identified are
properly subject to a claim of executive privilege and that the privilege
should be asserted with respect to those documents.

I.
I understand that on September 24, 1981, the Department of the
Interior supplied the Subcommittee with a large number of the materi­
als presently demanded by the subpoena, including a list of 36 published
sources and copies of 143 documents. Once the subpoena was issued,
the Departm ent o f the Interior, in consultation with other departments
having an interest in the matter, including the Departments of State,
Commerce, Treasury, Justice, and the Offices of the United States
T rade Representative and the W hite House Counsel, once again re­
viewed the documents w hich had not previously been provided to the
Subcommittee. In an effort to make every reasonable accommodation
to the legitimate needs o f the Legislative Branch, the Department of
the Interior released an additional 31 documents to the Subcommittee
on O ctober 9, 1981. One document was shown to the Subcommittee
staff at that time but w as not released. In addition, the Subcommittee
was provided with a written list and oral description of the 31 docu­
ments which had been withheld. The Subcommittee staff was permitted
to ask questions concerning the nature o f those documents, a procedure
designed to provide the Subcommittee with enough information to
assure itself that the documents are not essential to the conduct of the
Subcommittee’s legislative business. Finally, the Subcommittee was in­
formed that an additional 5-10 documents would be released once the
D epartm ent of the Interior had concluded its deliberations regarding
the status o f Canada under the Act.
All of the documents in issue are either necessary and fundamental to
the deliberative process presently ongoing in the Executive Branch or
relate to sensitive foreign policy considerations. Several of the docu­
ments reflect views of officials of the Canadian government transmitted
in confidence to United States officials as well as statements regarding
the status o f Canada by officials of the Department of State. Other
documents, prepared for the Cabinet Council on Economic Affairs and
the Cabinet-level Trade Policy Committee, are predecisional, delibera­
tive memoranda which have been considered by officials at the highest
levels of government. Both the Cabinet Council and the Trade Policy
Committee prepare recommendations for presidential action; in addi­
tion, you personally attend some Cabinet Council meetings and chair
these meetings when you do attend. Finally, a large portion of the
documents being withheld reflect internal deliberations within the D e­
partm ent o f the Interior regarding the status of Canada under the Act.
Some of these documents are staff level advice to policymakers con­
taining recommendations regarding decisions which have not yet
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become final. Others contain internal Interior Department deliberations
regarding its participation in the Trade Policy Staff Committee and the
Cabinet Council on Economic Affairs. Still other documents reflect
tentative legal judgments regarding questions arising under the Act. In
addition, the subpoena encompasses preliminary drafts of congressional
testimony by the Secretary of the Interior. These latter documents,
although generated at levels below that of the Cabinet and subcabinet,
are o f a highly deliberative nature and involve an ongoing decisional
process of considerable sensitivity.

II.

The Office of Legal Counsel of the Department of Justice has exam­
ined each of these documents and has concluded that they may prop­
erly be withheld from the Congress at this time. These documents are
quintessentially deliberative, predecisional materials. Each of the agen­
cies which generated the documents has stated that their release to the
Subcommittee would seriously interfere with or impede the deliberative
process of government and, in some cases, the Nation’s conduct of its
foreign policy. Because the policy options considered in many of these
documents are still under review in the Executive Branch, disclosure to
the Subcommittee at the present time could distort that decisional
process by causing the Executive Branch officials to modify policy
positions they would otherwise espouse because of actual, threatened,
or anticipated congressional reaction. M oreover, even if the decision at
issue had already been made, disclosure to Congress could still deter
the candor o f future Executive Branch deliberations, because officials at
all levels would know that they could someday be called by Congress
to account for the tentative policy judgments which they had earlier
advanced in the councils of the Executive Branch. As the Supreme
Court has noted, “[h]uman 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.” United States v. Nixon, 418 U.S. 683, 705
(1974). You must have access to complete and candid advice in order
to provide the soundest basis for presidential decisions. I have con­
cluded that release of these documents would seriously impair the
deliberative process and the conduct of foreign policy. There is, there­
fore, a strong public interest in withholding the documents from con­
gressional scrutiny at this time.
Against this strong public interest I must consider the interest of
Congress in obtaining these documents. The Subcommittee, in its letter
to Secretary W att of August 13, 1981, stated that it was conducting a
“legislative oversight inquiry” into the impact of Canadian energy poli­
cies upon American companies. The Subcommittee’s next formal com­
munication to Secretary Watt, the subpoena issued on September 28
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and served October 2, did not further explain the Subcommittee’s need
for the information. I therefore presume that the Subcommittee’s inter­
est in obtaining these documents is one of legislative oversight.2
Congress does have a legitimate interest in obtaining information to
assist it in enacting, amending, or repealing legislation. This interest
extends beyond information bearing on specific proposals for legisla­
tion; it includes, as well, the congressional “oversight” function of
being informed regarding the manner in which the Executive Branch is
executing the laws which Congress has passed. Such oversight enables
the Legislative Branch to identify at an early stage shortcomings or
problems in the execution o f the law which can be remedied through
legislation.
W hile I recognize the legitimacy o f the congressional interest in the
present case, it is important to stress two points concerning that inter­
est. First, the interest of Congress in obtaining information for oversight
purposes is, I believe, considerably weaker than its interest when spe­
cific legislative proposals are in question. A t the stage o f oversight, the
congressional interest is a generalized one of ensuring that the laws are
well and faithfully executed and of proposing remedial legislation if
they are not. T he information requested is usually broad in scope and
the reasons for the request correspondingly general and vague. In
contrast, when Congress is examining specific proposals for legislation,
the information which Congress needs to enable it to legislate effec­
tively is usually quite narrow in scope and the reasons for obtaining
that information correspondingly specific. A specific, articulated need
for information will weigh substantially more heavily in the constitu­
tional balancing than a generalized interest in obtaining information. See
United States v. Nixon, supra; Senate Select Committee on Presidential
Campaign Activities v. Nixon, 498 F.2d 725, 731-33 (D.C. Cir. 1974) (en
banc).
Second, the congressional oversight interest will support a demand
for predecisional, deliberative documents in the possession of the Exec­
utive Branch only in the most unusual circumstances. It is important to
stress that congressional oversight o f Executive Branch actions is justi­
fiable only as a means o f facilitating the legislative task of enacting,
amending, or repealing laws. When such “oversight” is used as a means
o f participating directly in an ongoing process of decisionmaking within
the Executive Branch, it oversteps the bounds of the proper legislative
function. Restricted to its proper sphere, the congressional oversight
function can almost always be properly conducted with reference to
information concerning decisions which the Executive Branch has al­

*T he House Com mittee on Energy and Commerce does have pending before it several bills, H.R.
4033, H.R. 4145, and H.R. 4186, w hich would amend the Act in certain respects. The pendency of
these bills has not been formally asserted as a reason for obtaining the documents. Moreover, the
docum ents requested appear to have a tangential relevance at best to the subject matter of the bill.

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ready reached. Congress will have a legitimate need to know the
preliminary positions taken by Executive Branch officials during inter­
nal deliberations only in the rarest of circumstances. Congressional
demands, under the guise of oversight, for such preliminary positions
and deliberative statements raise at least the possibility that the Con­
gress has begun to go beyond the legitimate oversight function and has
impermissibly intruded on the Executive Branch’s function of executing
the law. At the same time, the interference with the President’s ability
to execute the law is greatest while the decisionmaking process is
ongoing.
Applying the balancing process required by the Supreme Court, it is
my view that the Executive Branch’s interests in safeguarding the
integrity of its deliberative processes and its conduct o f the Nation’s
foreign policy outweigh the stated interest o f the Subcommittee in
obtaining this information for oversight purposes. It is, therefore, my
view that these documents may properly be withheld from the Sub­
committee at the present time.

III.

Finally, a brief word is in order concerning the negotiations between
the Department of the Interior and the Subcommittee during this dis­
pute. In cases in which the Congress has a legitimate need for informa­
tion that will help it legislate and the Executive Branch has a legiti­
mate, constitutionally recognized need to keep information confidential,
the courts have referred to the obligation of each branch to accommo­
date the legitimate needs of the other. See United States v. American
Tel. & Tel. Co., 567 F.2d 121, 127, 130 (D.C. Cir. 1977); see generally
United States v. Nixon, supra. The accommodation required is not
simply an exchange of concessions or a test of political strength. It is an
obligation ,of each branch to make a principled effort to acknowledge,
and if possible to meet, the legitimate needs of the other branch.
It is my view that the Executive Branch has made such a principled
effort at accommodation in the present case. Prior to the issuance o f the
subpoena, the Department of the Interior supplied the Subcommittee
with a large number of the documents subsequently requested by the
subpoena. In response to the subpoena, the interested Executive Branch
departments reviewed those documents which had been withheld and
identified documents that could be supplied in an effort to further
accommodate the Subcommittee’s needs. Substantial additional materi­
als were released to the Subcommittee on October 9, 1981, despite the
fact that at least some of these materials were deliberative in nature and
therefore presumptively subject to a claim of privilege. M oreover, the
Department of the Interior has promised to release additional material
once its deliberations regarding the status of Canada under the A ct are
completed. Finally, members o f the Subcommittee staff were provided
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a comprehensive list of the materials being withheld from disclosure,
and were briefed orally by the various federal agencies regarding the
nature o f those documents.
In contrast, the Subcommittee has not to date shown itself sensitive
to the legitimate needs o f the Executive Branch. As noted, it has never
formally stated its need for the materials beyond a generalized interest
in “oversight.” It responded to the submission of documents by the
Executive Branch on September 24 by issuing a subpoena four days
later—a subpoena which was broader in scope than the Subcommittee’s
original August 13 request. To date, the Subcommittee has shown little
interest in accommodating legitimate interests of the Executive Branch
in safeguarding the privacy of its deliberative processes and conducting
the Nation’s foreign policy. This lack of accommodation on the Sub­
comm ittee’s part lends further support to my conclusion that the docu­
ments in question may properly be withheld.
In conclusion, it is my opinion that the documents now being with­
held are well within the scope o f executive privilege. The process by
w hich the President makes executive decisions and conducts foreign
policy would be irreparably impaired by production of these documents
at this time. I recommend that executive privilege be asserted.

Sincerely,
W il l ia m F r e n c h S m it h

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