Executive Privilege

Aziz Huq has a bylined editorial in the Nation this fortnight on executive privilege, which is very nice, but it does take him to paragraph 8 to make the point I would put first: what good is it?

The standard explanation is that shielding a communication from inspection is required in order to achieve candor. You can see this in attorney-client or priest-penitent privilege: the attorney or confessor function would be completely frustrated if secrecy could not be guaranteed. You can quickly think of most of the functions that might be considered important enough to make a guarantee of a controlled communications environment: gathering information on the transmission of a communicable disease, or for an individual's diagnosis or treatment, anonymous reporting of crimes, support groups and brainstorming sessions, or when spouses confide in one another.

There are lots of laws shielding eliberations of various bodies: when judges caucus, or jurors especially, or even when job interviewers speak openly to decide whom to hire. Hence it is argued that officers of the executive branch, in order to obtain candid advice, must have blanket secrecy over their internal (and some external) discussions.

Huq questions this, and rightly so. My own immediate thought was what kind of exchange might occur if there were no executive privilege, what Bush and Rove might have been like in a room where the contents of their discussions was subject to general release:

President: So, what ought I to do about this here thing?

Adviser: I, I.. I'd rather not say, Mister President.

President: What's wrong, rover-dover?

Adviser: I, I'm ascared, Mr. President. What if I tell you what I think and then someone finds out and doesn't like what I said? They might make me feel bad.

President: Well, you know, it's like I always say, you don't come here to be popular, you got to stand up for stuff. Just tell me what I should do.

Advisor: I can't. I'm still afraid. I, I just wet myself. Waaaah!

As you can see, eliminating executive privilege would have completely crippled Karl Rove's ability to advise the president, which would have been a loss for us all.

As a caviat, I don't doubt that observing a privilege for executive advice is appropriate in proper circumstances. Executives may also be penitents or spouses or clients or patients. There may be times when effective advice depends on disclosing some matter which is rightly secret for other reasons. And there may be genuine occasions where the value of secrecy outweighs its costs. Maybe an advisor is has a special basis for concern but they're indospensible and no one else can give the advice. Likewise, there are also exceptions going the other way, where a privilege fails: the crime-fraud exception to attorney-client privilege, for example: if a client and attorney conspire to break the law, the exchange is not privileged. In any unclear case, a court may have to examine the content of the matter in chambers to decide what is privileged and what is not. That's life.