In claiming the existence of a state-level doctrine of executive privilege to shield access to internal communications, Gov. Larry Hogan stepped into a complicated legal minefield usually reserved for presidents and may have raised suspicions of whether his administration has something to hide.
Some important background: The legal principle of executive privilege is an implied power of the U.S. president, derived from the Constitution but not directly specified there. Indeed, the phrase “executive privilege” as it is currently used was not a part of our common language until the 1950s when first articulated in the Dwight D. Eisenhower administration.
Executive privilege is best remembered as the legal principle that President Richard M. Nixon unsuccessfully claimed in trying to conceal the incriminating White House tapes that led to his eventual downfall. Because of its direct association with the Watergate scandal, executive privilege had a bad reputation for a long time. Most presidents have been very cautious about uttering those words for fear of being associated with Nixon-like cover-ups.
Nonetheless, executive privilege has become a legally recognized power of presidents, although one that may be exercised only under well-recognized circumstances such as protecting certain national security needs or shielding internal communications when it serves the public interest to do so. It is not a power to be used as an across-the-board shield against access to any and all executive branch communications.
Presidential executive privilege comes from the Article II based powers of the office and also from federal court decisions and long-standing precedents. But where does the idea of a gubernatorial executive privilege come from? The governor’s legal counsel understated the case when he called the principle of executive privilege “a little murky.” Since executive privilege often has been associated with presidents concealing national security information, the very notion of a governor claiming a similar authority seems odd.
Nonetheless, there are some precedents for gubernatorial exercise of executive privilege in some states, mostly in cases where the information being protected concerned confidential advice given to the governor regarding sensitive legal matters. In case law at the federal level and in some states, there is a recognized principle that advisers to the chief executive must feel that they have the freedom of candid deliberations on sensitive issues without fear of public disclosure of their every utterance.
But that is not to say that every internal document in every executive branch department and agency may be stamped with a label that it is “protected by executive privilege.” That goes too far. Indeed, it is reminiscent of an argument that former president Nixon made that every communication in the executive branch by every employee is protected by executive privilege. That argument ultimately failed and has never been resurrected by any president since then.
With little controlling law or reliable precedents at the state level, it is reasonable to maintain that the existing federal standard — based now on many precedents and established case law — provides reliable guidance for state-level use of executive privilege.
The standard is that executive privilege is a power to be used only under the most compelling circumstances, and only in the cause of serving the public interest and not the political interests of those who wield this power. The presumption in our government system is in favor of openness. Secrecy, although at times necessary to the functioning of the executive branch, should be the rare exception and not the rule. A chief executive may reasonably claim executive privilege in cases where he or she is protecting the privacy of internal deliberations that, if made public, would undermine the deliberative process and damage the public good. Never should a leader consider whether to conceal information that might be politically embarrassing or give some advantage to his or her opponents.
The governor should align the practice of his administration with the common sense and legal standard, as well as existing state law that promotes open public information.
Mark Rozell is author of the book “Executive Privilege” (University Press of Kansas, 2010) and acting dean of the School of Policy, Government, and International Affairs at George Mason University. His email is mrozell@gmu.edu.
