//  6/6/17  //  Commentary

Former FBI Director Jim Comey is scheduled to testify on June 8th.  As of last week, some reports indicated that the Trump administration was considering whether to attempt to stop Comey from testifying by asserting a claim of “executive privilege” over the President’s conversations with Comey. The President instead elected to issue a statement on Monday that he would not assert a claim of executive privilege.

As Helen Klein Murillo explained at Lawfare, executive privilege encompasses two kinds of privilege—deliberative process privilege and presidential communications privilege. The D.C. Circuit has noted that the deliberative process privilege “disappears altogether when there is any reason to believe government misconduct occurred” because “shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’” In that same case, however, the D.C. Circuit explained that the presidential communications privilege does not give way when there is merely a colorable, plausible set of facts that gives rise to an inference of possible governmental misconduct.

The President's Monday statement waiving executive privilege suggested that Trump could have asserted executive privilege to prevent Comey from testifying.  We're not sure that's right, because Trump may have already waived the privilege at that point by repeatedly referring to the contents of his conversations with Comey.  Executive privilege, like any evidentiary privilege, can be waived by the person attempting to assert the privilege.  And despite some claims to the contrary, there is no rule that a waiver of executive privilege must be “formal” and explicitly state that the privilege has been waived. Indeed, courts have repeatedly found that the executive has waived executive privilege through informal statements that make no mention of waiver.

Many of these issues came up in the context of FOIA exemptions.  The Freedom of Information Act provides parties with a right to obtain information from the government subject to certain exemptions.  FOIA’s Exemption Five protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”  Included within the scope of that exemption are memoranda or letters protected by the executive privilege.

The courts have adopted the same rules about the scope of a waiver for exemption five cases as for executive privilege cases.  For claims of executive privilege, the release of a document waives executive privileges for the document or information specifically released, rather than for related materials.  That same rule applies in exemption five cases. 

In several cases, courts have found that the government had, through informal statements that made no mention of waiver, waived privileges incorporated into exemption 5.   These cases often involve the deliberative process privilege, which extends pre-decisional material related to the process by which policies are formulated.  While the scope of the deliberative process and presidential communications privileges may differ, the rules for what constitutes a waiver of the two kinds of executive privilege are similar.  The D.C. Circuit has explained that waivers of the presidential communications privilege should not be lightly inferred.  And the Supreme Court has stated that the deliberative process privilege is waived only if an agency “express[ly]” adopts or incorporates by reference the deliberative process it now maintains is privileged.  But an agency can expressly adopt the purportedly privileged deliberative reasoning formally or informally.   Consider these cases:

In New York Times v. DOJ, the 2nd Circuit found that the government had waived executive privilege over the legal analysis contained in an OLC opinion pertaining to targeted killings of American citizens abroad.  The Court wrote: “In considering waiver of the legal analysis … we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as an ‘extensive public relations campaign to convince the public that [the Administration’s] conclusions [about the lawfulness of the targeted killings] are correct.” 

The statements the court referred to were not formal statements that made any mention of privilege.  Rather, they were a speech at the annual meeting of the American Society of International Law; a speech at Yale Law School; a speech at Northwestern University; a speech at the Wilson Center; and the CIA Director’s testimony at his nomination hearing. None of those speeches (or at least the portions the court of appeals relied on) made any reference to waiving executive privilege. 

Nor did the other evidence the court relied on to conclude that executive privilege had been waived—the DOJ White Paper recited the Department’s legal analysis of targeted killings. The white paper did not formally or explicitly waive executive privilege over the OLC memo; it did not incorporate the OLC memo by reference.  (Attorney General Holder had, however, testified that the white paper discussion would be “more clear if … read in conjunction with the underlying OLC advice.”) Rather, the court reasoned that the substance of the reasoning in the white paper was so similar to the substance of the reasoning in the OLC memo that the government had waived its claim of privilege over the reasoning in the OLC memo.

In Brennan Center v. DOJ, the 2nd Circuit again found that the government had waived executive privilege over the legal analysis contained in an OLC memorandum (concerning the requirement that organizations that receive funding to combat HIV/AIDS and human trafficking pledge to oppose prostitution; that requirement was later held unconstitutional).  The court held executive privilege had been waived based on a USAID document (specifically, a footnote in the document, which stated the conclusion of the OLC memo) and a statement the U.S. Global AIDS Coordinator made in a congressional hearing. Neither the document nor the statement expressly waived the executive privilege.

In National Council of La Raza v. DOJ, the 2nd Circuit held that DOJ had waived executive privilege over the analysis in an OLC memo by expressly adopting or incorporating it by reference.  The evidence the court relied on to reach this conclusion were statements the Attorney General had made in a press conference; statements a member of the Attorney General’s office made to a group of state and local police department officials; and three letters from the Attorney General or Acting Assistant Attorney Generals. None of the letters or statements formally waived the executive privilege.  But the court held they constituted a waiver over the OLC memorandum because of “the repeated references to the OLC Memorandum by the Attorney General and his high-ranking advisers, the substance of their comments, and the way in which their comments were used—that is, to assure third parties as to the legality of the actions.”  (Brief aside: one of the statements that constituted a “waiver” were the remarks of then counsel to the Attorney General Kris Kobach.)  Footnote 6 of La Raza rejected the argument that the court should “disregard any statements made by individuals other than the Attorney General.”  The court wrote: “[E]ven assuming arguendo that these employees do not have the power to adopt or incorporate the OLC Memorandum, their statements serve as evidence of the Department’s position on the matter.”

Based on these cases, whether the President has waived any claim of privilege over his communications with Jim Comey turns on a host of factors, including the extent of the executive’s representations about purportedly privileged materials; whether those representations are done to convince the public; the overlap between what has been disclosed and what is purportedly privileged; the specificity of the President’s statements; and other factors too

But at least one thing is perfectly clear: Whether there is a waiver does not come down to whether the executive has formally waived the privilege, or even recited some magic words like “waiver” or “privilege.”

N.B.: There may be other reasons why the President is not entitled to use executive privilege to block Comey from testifying, which we do not cover in this post. For example, and as Eric Columbus has explained on Twitter, there is little basis for invoking executive privilege to prevent from testifying a private citizen who is a former government official and who also wants to testify. (Columbus worked on executive privilege issues as part of his federal government service from 2009-2017.)

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