Assertion of Executive Privilege for Memorandum to the

President Concerning Efforts to Combat Drug Trafficking

Executive privilege may properly be asserted with respect to a memorandum to the President from 

the Director of the Federal Bureau of Investigation and the Administrator of the Drug Enforcement 

Administration containing confidential advice and recommendations regarding efforts to combat 

drug trafficking. The memorandum was subpoenaed by the Subcommittee on National Security, 

International Affairs and Criminal Justice of the Committee on Government Reform and Oversight 

o f the House o f Representatives.

September 30, 1996

THE PRESIDENT

THE W HITE HOUSE

My Dear M r. President: You have requested my legal advice as to whether 

executive privilege may properly be asserted with respect to a document that was 

subpoenaed on September 27, 1996 by the Subcommittee on National Security, 

International Affairs and Criminal Justice of the Committee on Government Reform and Oversight of the House of Representatives.

The subpoenaed document is a memorandum to you from the Director of the 

Federal Bureau of Investigation (“ FBI” ) and the Administrator of the Drug Enforcement Administration (“DEA” ), containing confidential advice and recommendations regarding efforts to combat drug trafficking. The Subcommittee 

first requested this document on September 17, 1996. By letter dated September 

27, 1996, the Deputy Counsel to the President informed the Subcommittee of the 

White House’s concerns regarding the need to preserve the confidentiality of deliberative communications to the President and indicated that the Department of 

Justice is prepared to accommodate the Subcommittee’s request by providing a 

briefing on the subject addressed by the memorandum.

The memorandum to you from the FBI Director and the DEA Administrator 

clearly falls within the scope of executive privilege. It is well established that 

executive privilege applies to confidential communications to the President. See

generally United States v. Nixon, 418 U.S. 683, 705-13 (1974); Nixon v. Administrator o f General Servs., 433 U.S. 425, 446-55 (1977). The Supreme Court has 

recognized

the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making 

decisions and to do so in a way many would be unwilling to express 

except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fun8
A ssertion o f Executive Privilege fo r M emorandum to the President Concerning E fforts to Combat

D rug Trafficking

damental to the operation of Government and inextricably rooted 

in the separation of powers under the Constitution.

United States v. Nixon, 418 U.S. at 708.

Under controlling case law, in order to justify a demand for material protected 

by executive privilege, a congressional committee is required to demonstrate that 

the information sought is “ demonstrably critical to the responsible fulfillment of 

the Committee’s functions.” Senate Select Committee on Presidential Campaign

Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). The only justification the Subcommittee has provided for access to this document is its oversight interest regarding countemarcotics policy. See Letter for the President, from 

William H. Zeliff, Jr., Chairman, Subcommittee on National Security, International 

Affairs and Criminal Justice (Sept. 17, 1996). It is clear that such a generalized 

interest weighs substantially less in the constitutional balancing than a specific 

need in connection with the consideration of legislation. See Letter for the President, from William French Smith, Attorney General, Re: Assertion o f Executive

Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 30 (1981) 

(“ [T]he interest of Congress in obtaining information for oversight purposes is, 

I believe, considerably weaker than its interest when specific legislative proposals 

are in question.” ). Accordingly, conducting the balancing required by the case 

law, see Senate Select Committee, 498 F.2d at 729-30; United States v. Nixon,

418 U.S. at 706-07,1 do not believe that access to this Presidential communication 

would be held by the courts to be “ demonstrably critical to the responsible fulfillment of the [Subcommittee’s] functions.” Senate Select Committee, 498 F.2d at 

731.

In conclusion, it is my legal judgment that executive privilege may properly 

be asserted in response to the Subcommittee’s subpoena.

Sincerely,

JANET RENO 

Attorney General

9

OPINIONS

OF THE

OFFICE OF LEGAL COUNSEL

11