Assertion of Executive Privilege for Memorandum to the President Concerning Efforts to Combat Drug Trafficking

Assertion of Executive Privilege for Memorandum to the
President Concerning Efforts to Combat Drug Trafficking
Executive privilege may properly be asserted with respect to a memorandum to the President from
the Director o f the Federal Bureau of Investigation and the Administrator o f the Drug Enforcement
Adm inistration containing confidential advice and recommendations regarding efforts to combat
drug trafficking. The memorandum was subpoenaed by the Subcommittee on National Security,
International Affairs and Criminal Justice of the Committee on Government Reform and Oversight
o f the House o f Representatives.

September 30, 1996

THE PRESIDENT
TH E W HITE HOUSE

My Dear M r. President: You have requested my legal advice as to whether
executive privilege may properly be asserted with respect to a document that was
subpoenaed on September 27, 1996 by the Subcommittee on National Security,
International Affairs and Criminal Justice of the Committee on Government Re­
form and Oversight of the House of Representatives.
The subpoenaed document is a memorandum to you from the Director of the
Federal Bureau of Investigation (“ FBI” ) and the Administrator of the Drug En­
forcement Administration (“ DEA” ), containing confidential advice and rec­
ommendations regarding efforts to combat drug trafficking. The Subcommittee
first requested this document on September 17, 1996. By letter dated September
27, 1996, the Deputy Counsel to the President informed the Subcommittee of the
White House’s concerns regarding the need to preserve the confidentiality of de­
liberative communications to the President and indicated that the Department of
Justice is prepared to accommodate the Subcommittee’s request by providing a
briefing on the subject addressed by the memorandum.
The memorandum to you from the FBI Director and the DEA Administrator
clearly falls within the scope of executive privilege. It is well established that
executive privilege applies to confidential communications to the President. See
generally U nited States v. Nixon, 418 U.S. 683, 705-13 (1974); Nixon v. Adminis­
trator o f G eneral Servs., 433 U.S. 425, 446-55 (1977). The Supreme Court has
recognized

the necessity for protection of the public interest in candid, objec­
tive, and even blunt or harsh opinions in Presidential decision­
making. A President and those who assist him must be free to ex­
plore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express
except privately. These are the considerations justifying a presump­
tive privilege for Presidential communications. The privilege is fun-

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 A ssertion o f E xecutive P rivilege fo r M em orandum to the P resident C oncerning E ffo rts to C om bat
D rug Trafficking

damental to the operation of Government and inextricably rooted
in the separation of powers under the Constitution.

United States v. Nixon, 418 U.S. at 708.
Under controlling case law, in order to justify a demand for material protected
by executive privilege, a congressional committee is required to demonstrate that
the information sought is “ demonstrably critical to the responsible fulfillment of
the Committee’s functions.” Senate Select Committee on Presidential Campaign
Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). The only jus­
tification the Subcommittee has provided for access to this document is its over­
sight interest regarding countemarcotics policy. See Letter for the President, from
William H. Zeliff, Jr., Chairman, Subcommittee on National Security, International
Affairs and Criminal Justice (Sept. 17, 1996). It is clear that such a generalized
interest weighs substantially less in the constitutional balancing than a specific
need in connection with the consideration of legislation. See Letter for the Presi­
dent, from William French Smith, Attorney General, Re: Assertion o f Executive
Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 30 (1981)
(“ [T]he interest of Congress in obtaining information for oversight purposes is,
I believe, considerably weaker than its interest when specific legislative proposals
are in question.” ). Accordingly, conducting the balancing required by the case
law, see Senate Select Committee, 498 F.2d at 729-30; United States v. Nixon,
418 U.S. at 706-07,1 do not believe that access to this Presidential communication
would be held by the courts to be “ demonstrably critical to the responsible fulfill­
ment of the [Subcommittee’s] functions.” Senate Select Committee, 498 F.2d at
731.
In conclusion, it is my legal judgment that executive privilege may properly
be asserted in response to the Subcommittee’s subpoena.

Sincerely,

JANET RENO
Attorney General

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 OPINIONS

OF THE

OFFICE OF LEGAL COUNSEL

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