Congressional Requests for
Confidential Executive Branch Information
This memorandum summarizes the principles and practices governing congressional
requests for confidential executive branch information.
June 19, 1989
Memorandum O pinion for the
G eneral Counsel’s Consultative G roup
This memorandum summarizes the principles and practices governing
congressional requests for confidential executive branch information. As
discussed below, the executive branch’s general practice has been to
attempt to accommodate whatever legitimate interests Congress may
have in obtaining the information, while, at the same time, preserving
executive branch interests in maintaining essential confidentiality. Only
when the accommodation process fails to resolve a dispute and a sub
poena is issued does it become necessary for the President to consider
asserting executive privilege.
I. Congress’ Oversight Authority
The constitutional role of Congress is to adopt general legislation that
will be implemented — “executed” — by the executive branch. The
courts have recognized that this general legislative interest gives
Congress investigatory authority. Both Houses of Congress have power,
“through [their] own process, to compel a private individual to appear
before it or one of its committees and give testimony needed to enable it
efficiently to exercise a legislative function belonging to it under the
Constitution.” McGrain v. Daugherty, 273 U.S. 135, 160 (1927). The
issuance of subpoenas in aid of this function “has long been held to be a
legitimate use by Congress of its power to investigate,” Eastland v.
United States Serviceman’s Fund, 421 U.S. 491, 504 (1975), provided
that the investigation is “related to, and in furtherance of, a legitimate
task of the Congress.” Watkins v. United States, 354 U.S. 178, 187 (1957).
The inquiry must pertain to subjects “on which legislation could be had.”
McGrain v. Daugherty, 273 U.S. at 177. Thus, Congress’ oversight
authority
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is as penetrating and far-reaching as the potential power to
enact and appropriate under the Constitution.
Broad as it is, the power is not, however, without limita
tions. Since Congress may only investigate into those areas
in which it may potentially legislate or appropriate, it can
not inquire into matters which are within the exclusive
province of one of the other branches of the Government.
Barenblatt v. United States, 360 U.S. 109, 111-12 (1959).
II. Executive Privilege
If it is established that Congress has a legitimate legislative purpose for
its oversight inquiry, the executive branch’s interest in keeping the infor
mation confidential must be assessed. This subject is usually discussed in
terms of “executive privilege,” and that convention is used here. The
question, however, is not strictly speaking just one of executive privilege.
While the considerations that support the concept and assertion of exec
utive privilege apply to any congressional request for information, the
privilege itself need not be claimed formally vis-a-vis Congress except in
response to a lawful subpoena; in responding to a congressional request
for information, the executive branch is not necessarily bound by the lim
its of executive privilege.
Executive privilege is constitutionally based. To be sure, the Consti
tution nowhere expressly states that the President, or the executive
branch generally, ei\joys a privilege against disclosing information
requested by the courts, the public, or the legislative branch. The exis
tence of such a privilege, however, is a necessary corollary of the execu
tive function vested in the President by Article II of the Constitution.1 It
has been asserted by numerous Presidents from the earliest days of our
Nation, and it was explicitly recognized by the Supreme Court in United
States v. Nixon, 418 U.S. 683, 705-06 (1974).
There are at least three generally-recognized components of executive
privilege: state secrets, law enforcement, and deliberative process. Since
most disputes with Congress in this area in recent years have concerned
the privilege for executive branch deliberations, this memorandum will
focus on that component. See generally Confidentiality of the Attorney
General’s Communications in Counseling the President, 6 Op. O.L.C.
481, 484-90 (1982).
1 The privilege to withhold information is implicit in the scheme of Article II and particularly in the pro
visions that “(t]he executive Power shall be vested in a President of the United States of America," U S
Const, art. II, § 1, cl. 1, and that the President shall “take Care that the Laws be faithfully executed,” U.S.
Const, art. II, § 3.
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The first congressional request for information from the executive
branch occurred in 1792, in the course of a congressional investigation
into the failure of an expedition under the command of one General St.
Clair. President Washington called his Cabinet together to consider his
response, stating that he could conceive that there might be papers of so
secret a nature that they ought not be given up. The President and his
Cabinet concluded “that the Executive ought to communicate such
papers as the public good would permit, and ought to refuse those, the
disclosure of which would injure the public.” 1 Writings of Thomas
Jefferson 304 (1903) (emphasis added). While President Washington ulti
mately determined in the St. Clair case that the papers requested could be
furnished without ii\jury to the public, he refused four years later to com
ply with a House committee’s request for copies of instructions and other
documents employed in connection with the negotiation of a treaty with
Great Britain.
The practice of refusing congressional requests for information, on the
ground that the national interest would be harmed by the disclosure, was
employed by many Presidents in the ensuing years. See generally History
of Refusals by Executive Branch Officials to Provide Information
Demanded by Congress, Part I - Presidential Invocations of Executive
Privilege Vis-a-Vis Congress, 6 Op. O.L.C. 751 (1982). The privilege was
most frequently asserted in the areas of foreign affairs and military and
national security secrets; it was also invoked in a variety of other con
texts, including executive branch investigations. In 1954, in instructing
the Secretary of Defense concerning a Senate investigation, President
Eisenhower asserted that the privilege extends to deliberative communi
cations within the executive branch:
Because it is essential to efficient and effective adminis
tration that employees of the Executive Branch be in a posi
tion to be completely candid in advising with each other on
official matters, and because it is not in the public interest
that any of their conversations or communications, or any
documents or reproductions, concerning such advice be
disclosed, you will instruct employees of your Department
that in all of their appearances before the Subcommittee of
the Senate Committee on Government Operations regard
ing the inquiry now before it they are not to testify to any
such conversations or communications or to produce any
such documents or reproductions.
Pub. Papers of Dwight D. Eisenhower 483-84 (1954).
The Supreme Court has recognized that the Constitution gives the
President the power to protect the confidentiality of executive branch
deliberations. See generally Nixon v. Administrator of Gen. Servs., 433
155
U.S. 425, 446-55 (1977). This power is independent of the President’s
power over foreign affairs, national security, or law enforcement; it is
rooted instead in “the necessity for protection of the public interest in
candid, objective, and even blunt or harsh opinions in Presidential deci
sionmaking.” United States v. Nixon, 418 U.S. at 708.
It necessarily follows — and the Supreme Court so held in United
States v. Nixon — that communications among the President and his
advisers eryoy “a presumptive privilege” against disclosure in court. Id.2
The reasons for this privilege, the Nixon Court explained, are “plain.”
“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.” Id. at 705. Often, an adviser’s remarks can be fully understood
only in the context of a particular debate and of the positions others have
taken. Advisers change their views, or make mistakes which others cor
rect; this is indeed the purpose of internal debate. The result is that advis
ers are likely to be inhibited if they must anticipate that their remarks will
be disclosed to others, not party to the debate, who may misunderstand
the significance of a particular statement or discussion taken out of con
text. Some advisers may hesitate — out of self-interest — to make
remarks that might later be used against their colleagues or superiors. As
the Court stated, “[a] president and those who assist him must be free to
explore alternatives in the process of shaping policies and making deci
sions and to do so in a way many would be unwilling to express except
privately.” Id. at 708.
These reasons for the constitutional privilege have at least as much
force when it is Congress, instead of a court, that is seeking information.
The possibility that deliberations will be disclosed to Congress is, if any
thing, more likely to chill internal debate among executive branch advis
ers. When the Supreme Court held that the need for presidential commu
nications in the criminal trial of President Nixon’s close aides outweighed
the constitutional privilege, an important premise of its decision was that
it did not believe that “advisers will be moved to temper the candor of
their remarks by the infrequent occasions of disclosure because of the
possibility that such conversations will be called for in the context of a
criminal prosecution.” Id. at 712. By contrast, congressional requests for
executive branch deliberative information are anything but infrequent.
2 The Nixon Court explained that the privilege is constitutionally based:
[T]he privilege can be said to derive from the supremacy of each branch within its own
assigned area of constitutional duties. Certain powers and privileges flow from the nature of
enumerated powers; the protection of the confidentiality of Presidential communications has
similar constitutional underpinnings.
418 U.S. at 705-06 (footnote omitted). The Court also acknowledged that the privilege stems from the
principle of separation of powers: “The privilege is fundamental to the operation of Government and
inextncably rooted in the separation of powers under the Constitution.” Id at 708.
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Moreover, compared to a criminal prosecution, a congressional investi
gation is usually sweeping; its issues are seldom narrowly defined, and
the inquiry is not restricted by the rules of evidence. Finally, when
Congress is investigating, it is by its own account often in an adversarial
position to the executive branch and initiating action to override judg
ments made by the executive branch. This increases the likelihood that
candid advice from executive branch advisers will be taken out of con
text or misconstrued. For all these reasons, the constitutional privilege
that protects executive branch deliberations against judicial subpoenas
must also apply, perhaps even with greater force, to Congress’ demands
for information.
The United States Court of Appeals for the District of Columbia Circuit
has explicitly held that the privilege protects presidential communica
tions against congressional demands. During the Watergate investigation,
the Court of Appeals rejected a Senate committee’s efforts to obtain tape
recordings of conversations in President Nixon’s offices. The court held
that the tapes were constitutionally privileged and that the committee
had not made a strong enough showing to overcome the privilege. Senate
Select Comm, on Presidential Campaign Activities v. Nixon, 498 F.2d
725 (D.C. Cir. 1974) (en banc). Indeed, the court held that the committee
was not entitled to the recordings unless it showed that “the subpoenaed
evidence is demonstrably critical to the responsible fulfillment of the
Committee’s functions.” Id. at 731 (emphasis added).3
Finally, history is replete with examples of the executive’s assertion of
privilege in the face of congressional requests for deliberative process
information. We have previously recounted the incidents in which
Presidents, beginning with President Washington, have withheld from
Congress documents that reflected deliberations within the executive
branch. History of Refusals by Executive Branch Officials to Provide
Information Demanded by Congress, Part II - Invocations of Executive
Privilege by Exective Officials, 6 Op. O.L.C. 782 (1982).
III. Accommodation Process
Where Congress has a legitimate need for information that will help it
legislate, and the executive branch has a legitimate, constitutionally rec
ognized need to keep certain information confidential, at least one court
3 The Supreme Court has assumed that the constitutional privilege protects executive branch delibera
tions against Congress to some degree. See United States v Nixon, 418 U S at 712 n 19. Moreover, the
Court held in Administrator of General Services, that the constitutional privilege protects executive
branch deliberations from disclosure to members of the same branch in a later administration, the Court
rejected the specific claim of privilege in the case not because the privilege was inapplicable but because
the intrusion was limited and the interests justifying the intrusion were strong and nearly unique.
See 433
U S at 446-55. Since the Court has held that the privilege protects executive branch communications
against compelled disclosure to the judicial branch and to later members of the executive branch, there is
every reason to believe that the Court would hold that it protects against compelled disclosure to Congress
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has referred to the obligation of each branch to accommodate the legiti
mate needs of the other. This duty to accommodate was described by the
D.C. Circuit in a case involving a House committee’s request to a private
party for information which the executive branch believed should not be
disclosed. The court said:
The framers ... expect[ed] that where conflicts in scope of
authority arose between the coordinate branches, a spirit of
dynamic compromise would promote resolution of the dis
pute in the manner most likely to result in efficient and effec
tive functioning of our governmental system. Under this
view, the coordinate branches do not exist in an exclusively
adversary relationship to one another when a conflict in
authority arises. Rather, each branch should take cognizance
of an implicit constitutional mandate to seek optimal accom
modation through a realistic evaluation of the needs of the
conflicting branches in the particular fact situation.
[Because] it was a deliberate feature of the constitutional
scheme to leave the allocation of powers unclear in certain
situations, the resolution of conflict between the coordinate
branches in these situations must be regarded as an oppor
tunity for a constructive modus vivendi, which positively
promotes the functioning of our system. The Constitution
contemplates such accommodation. Negotiation between
the two branches should thus be viewed as a dynamic
process affirmatively furthering the constitutional scheme.
United States v. AT&T, 567 F.2d 121, 127, 130 (D.C. Cir. 1977) (footnotes
omitted).
In an opinion he issued in connection with a 1981 executive privilege
dispute involving a committee of the House of Representatives and the
Department of Interior, Attorney General William French Smith captured
the essence of the accommodation process:
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.
Assertion of Executive Privilege in Response to a Congressional
Subpoena, 5 Op. O.L.C. 27, 31 (1981) (“Smith Opinion”).
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It is difficult to generalize about the kind of accommodation with
respect to deliberative process information that may be appropriate in
particular cases. Whether to adhere to the consistent general policy of
confidentiality for such information will depend on the facts of the spe
cific situation. Certain general principles do apply, however. As Attorney
General Smith explained in advising President Reagan:
[T]he interest of Congress in obtaining information for
oversight purposes is ... considerably weaker than its inter
est when specific legislative proposals are in question. At
the stage of oversight, the congressional interest is a gener
alized one of ensuring that the laws are well and faithfully
executed and of proposing remedial legislation if they are
not. The information requested is usually broad in scope
and the reasons for the request correspondingly general
and vague. In contrast, when Congress is examining specif
ic proposals for legislation, the information which
Congress needs to enable it to legislative effectively is usu
ally quite narrow in scope and the reasons for obtaining
that information correspondingly specific. A specific, artic
ulated need for information will weigh substantially more
heavily in the constitutional balancing than a generalized
interest in obtaining information.
Smith Opinion, 5 Op. O.L.C. at 30. Moreover, Attorney General Smith
explained, information concerning ongoing deliberations need rarely be
disclosed:
[T]he congressional oversight interest will support a
demand for predecisional, deliberative documents in the
possession of the Executive Branch only in the most unusu
al circumstances. It is important to stress that congression
al oversight of Executive Branch actions is justifiable only
as a means of facilitating the legislative task of enacting,
amending, or repealing laws. When such “oversight” is used
as a means of 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 already reached. Congress will have a legitimate
need to know the preliminary positions taken by Executive
Branch officials during internal deliberations only in the
rarest of circumstances. Congressional demands, under the
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guise of oversight, for such preliminary positions and delib
erative statements raise at least the possibility that the
Congress 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.
Id. at 30-31.
IV. Procedures
President Reagan’s November 4, 1982 Memorandum for the Heads of
Executive Departments and Agencies on “Procedures Governing
Responses to Congressional Requests for Information” ( “Reagan
Memorandum”) sets forth the long-standing executive branch policy in
this area:
The policy of this Administration is to comply with Con
gressional requests for information to the fullest extent
consistent with the constitutional and statutory obligations
of the Executive Branch.... [E]xecutive privilege will be
asserted only in the most compelling circumstances, and
only after careful review demonstrates that assertion of the
privilege is necessary. Historically, good faith negotiations
between Congress and the executive branch have mini
mized the need for invoking executive privilege, and this
tradition of accommodation should continue as the prima
ry means of resolving conflicts between the Branches.
Reagan Memorandum at 1. The Reagan Memorandum also sets forth the
procedures for asserting executive privilege in response to a congres
sional request for information. Under the terms of the Memorandum, an
agency must notify and consult with the Attorney General, through the
Assistant Attorney General for the Office of Legal Counsel, as soon as it
determines that compliance with the request raises a “substantial ques
tion of executive privilege.” The Memorandum further provides that
executive privilege cannot be asserted without specific authorization by
the President, based on recommendations made to him by the concerned
agency head, the Attorney General, and the Counsel to the President.
In practice, disputes with Congress in this area typically commence
with an informal oral or written request from a congressional committee
or subcommittee for information in the possession of the executive
branch. Most such requests are honored promptly; in some cases, how
ever, the executive branch official may resist supplying some or all of the
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requested information either because of the burden of compliance or
because the information is o f a sensitive nature. The executive branch
agency and the committee staff will typically negotiate during this period
to see if the dispute can be settled in a manner acceptable to both sides.
In most cases this accommodation process is sufficient to resolve any
dispute. On occasion, however, the process breaks down, and a subpoe
na is issued. At that point, if further negotiation is unavailing, it is neces
sary to consider asking the President to assert executive privilege.
If after assertion of executive privilege the committee remains unsatis
fied with the agency’s response, it may vote to hold the agency head in
contempt of Congress. If the full Senate or House of Representatives then
votes to hold the official in contempt, it might attempt to impose sanc
tions by one of three methods. First, it might refer the matter to a United
States Attorney for reference to a grand jury. See 2 U.S.C. §§ 192, 194.
Second, the Sergeant-at-Arms theoretically could be dispatched to arrest
the official and detain him in the Capitol; if this unlikely event did occur,
the official would be able to test the legality of this detention through a
habeas corpus petition, thereby placing in issue the legitimacy of his
actions in refusing to disclose the subpoenaed information. Third, and
the most likely option due to legal and practical difficulties associated
with the first two options, the Senate or House might bring an action in
court to obtain a judicial order requiring compliance with the subpoena
and contempt of court enforcement orders if the court’s order is defied.
WILLIAM P. BARR
Assistant Attorney General
Office of Legal Counsel
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