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Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation

Following up on my last post, the House Committee on Oversight and Government Reform advances several grounds for rejecting the Justice Department’s assertion of deliberative process privilege. The broadest argument is that deliberative process is a common law, not a constitutional, privilege and therefore must give way to Congress’s constitutional power of oversight. As COGR puts it, “[d]eliberative process, a common law evidentiary privilege designed to protect the confidentiality of some intra-agency deliberations in the context of adjudicatory proceedings (and FOIA), simply is not consistent with an overarching constitutional principle that requires the Congress to oversee Executive Branch agencies precisely by peering inside them.” Motion at 27. We have encountered a similar argument before in connection with whether Congress is bound to respect the attorney-client privilege, another common law privilege.

There is considerable force to COGR’s position. Recognizing a presumptive right of the executive branch to withhold any information it deems part of the “deliberative process” seems inconsistent with Congress’s authority and duty to exercise continuous oversight over the agencies it creates and funds. For example, it is entirely proper for a congressional committee to study the deliberative process leading up to an agency’s issuances of a particular regulation for purposes such as deciding whether to reject the regulation, amend the underlying statute or restructure the agency itself. Indeed, the committee may have no particular legislative objective in mind, but merely wish to understand how the agency is administering or executing the law. See 2 U.S.C. § 190d(a) (“each standing committee of the Senate and the House of Representatives shall review and study, on a continuing basis, the application, administration, and execution of those laws, the subject matter of which is within the jurisdiction of that committee.”)

COGR’s position does not mean that Congress would always insist on obtaining deliberative materials from the agencies it oversees. Instead, congressional committees would decide for themselves whether the legislative need for particular documents or information outweighs the executive interest in maintaining the confidentiality of its deliberative process. Thus, COGR contends that “[w]hen the Executive makes reasoned and persuasive arguments as to why internal deliberative information should be withheld, Congress historically has agreed to exercise its discretion to accede to those concerns.” Motion at 32-33. In so doing, Congress simply exercises the same sort of evidentiary authority over legislative proceedings as courts do with regard to judicial proceedings.

But there are reasons both practical and theoretical why the courts may be reluctant to swallow COGR’s broader position. As a practical matter, the courts are more likely to see Congress and the executive branch as political adversaries maneuvering for advantage than to see Congress as a neutral arbiter of privilege claims. One can expect that Judge Amy Berman Jackson, presiding over this case, to be less than fully trusting of Congress to fairly balance its own interests against those of the president.

From a theoretical perspective, the authority to judge privilege claims would seem to be inherent in situations where the Constitution invests Congress with a judicial function, such as impeachment, but it is less obvious that congressional oversight of the executive gives Congress unreviewable discretion with regard to privilege claims. In addition, there is at least some tension between claiming a unilateral congressional authority to resolve privilege issues and seeking judicial assistance in support of that authority. Even if Congress is not bound to accept the executive’s claim of deliberative process, the courts may reason, Congress has no absolute right to judicial assistance in enforcement of its subpoenas. If the executive asserts a claim of deliberative process that would be valid in a judicial proceeding, a court might exercise its discretion to deny declaratory or injunctive relief without regard to whether the executive technically has the “right” to make this claim in legislative proceedings.

The courts may also be leery of the potential consequences of a blanket ruling that common law privileges are inapplicable to congressional proceedings. While effective congressional oversight requires the ability to review and study the deliberative process in the executive branch, there is a potential for abuse if congressional committees were routinely to exercise the right to see all internal executive deliberations on a particular issue. Moreover, a broad ruling might have implications for other common-law privileges, such as the attorney-client privilege, that the judiciary will be hesitant to embrace.

How might Judge Jackson resolve this dilemma? One possibility is that she may avoid the broader question by finding that the Justice Department’s assertion of deliberative process privilege here would fail even if it were made in a judicial proceeding. Indeed, COGR’s first argument in support of its summary judgment motion is not that deliberative process is inapplicable to congressional proceedings, but that well-established judicial precedent supports rejecting the privilege claims under the factual circumstances presented here. See Motion at 21.

Specifically, COGR relies on the doctrine that assertions of deliberative process will be denied “where there is reason to believe that the documents sought may shed light on government misconduct.” In re Sealed Case (Espy), 121 F.3d 729, 738 (D.C. Cir. 1997). Because COGR is investigating DOJ wrongdoing, it contends that the deliberative process must give wayThe linchpin of the committee’s argument is a February 4, 2011 letter that DOJ sent to Congress in which it denied that the department had engaged in so-called “gun-walking operations,” i.e., practices where it knowingly allowed assault weapons to be sold to straw purchasers who then transported them to Mexico. This denial was false, as DOJ was forced to acknowledge some 10 months later. To the extent that the documents sought by COGR may shed light on how and why this misrepresentation took place, the privilege is properly denied.

As I understand it, however, DOJ has already produced all documents responsive to COGR’s subpoena that pre-dated February 4, 2011. DOJ’s position, presumably, is that those are the documents most likely to shed light on the misconduct COGR is investigating. Of course, it does not logically follow that documents post-dating the misconduct are necessarily irrelevant to the committee’s investigation. But neither is it obvious that all post-February 4 Fast and Furious documents can reasonably be expected to shed light on the wrongdoing. To resolve this sort of issue, it would seem that Judge Jackson would need to scrutinize each category of document, if not each document itself, to assess its likely relationship to the committee’s investigation.

Perhaps Judge Jackson is willing to do this, but my guess is that she would prefer not getting into making judgments about the relevance of particular documents to the committee’s investigation. So she may be interested in looking for another way to decide the case that avoids getting into the weeds of the committee’s investigation.

It seems to me that this could draw her toward a procedural approach to the privilege issue. Under such an approach, a congressional committee seeking judicial assistance in support of a decision to override a claim of common law (i.e., non-constitutional) privilege would  be entitled to such assistance so long as it afforded the party asserting privilege with a fair opportunity to make privilege assertions, gave serious consideration to “reasoned and persuasive arguments” in favor of recognizing the privilege and otherwise complied with applicable congressional rules in deciding the issue. Thus, the court could avoid both getting into the messy details of a congressional investigation and giving congressional committees carte blanche with regard to privilege claims.

While I have limited familiarity with the nuances of the Fast and Furious investigation, it seems as if this case might be an attractive candidate for such an approach. COGR’s brief lays out a strong case that here it was the Justice Department did not comply with applicable procedural requirements, by for example making untimely and shifting claims of privilege while simply ignoring the subpoena’s instructions for making and preserving privilege assertions. See Motion at 33-36. If this is so, the court can reject the Justice Department’s privilege claims here in a way that will incentivize appropriate behavior by both the legislative and executive branches in the future.

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