Confidentiality of the Attorney General’s

Communications in Counseling the President

[The following memorandum examines the scope of confidentiality accorded the Attorney G eneral’s 

communications with the President, and the extent to which those communications may be 

shielded from com pulsory disclosure to Members of Congress, the courts, and members of the 

public. It considers the dual nature of the Attorney General’s role as Cabinet member and as 

principal legal adviser to the President, and extends to the broader question of the confidentiality of 

the deliberative materials generated by the Attorney General and those who assist him . The 

memorandum discusses the applicability of the doctrine of executive privilege, and the appropriate 

circumstances for its invocation. It also analyzes the scope of the deliberative process and attomeyclient privileges under the Freedom of Information Act, and of the traditional governmental 

evidentiary privileges and their statutory counterparts.]

August 2, 1982

MEMORANDUM FOR THE ATTORNEY GENERAL

You have asked this Office to advise you regarding the scope of confidentiality 

accorded your communications with the President in your role as Attorney 

General. Your inquiry focused particularly on the extent to which legal advice 

rendered by you to the President may be shielded from compulsory disclosure to 

Members of Congress, the courts, and members of the public. Our analysis of 

these issues includes the broader subject of the confidentiality of the deliberative 

materials generated by you, and those who assist you, in the performance of your 

responsibilities as adviser to the President. We also discuss briefly certain 

privileges which protect other communications generated by the Department of 

Justice in the course of performing its duties.

Any discussion of the confidential nature of the Attorney General’s communications with the President must begin with a recognition of the dual counseling 

functions performed by the Attorney General. The Attorney General serves as 

both a Cabinet adviser and the principal legal adviser to the President.1 As a 

member of the President’s Cabinet, the Attorney General maintains a close and 

confidential advisory relationship with the President over a broad range of policy 

issues, including the highest and most delicate affairs of state. See, e.g., Rankin,

1 In 1828 Attorney General Wirt described the Attorney General as "confidential law adviser to the Executive 

branch of the government ” See H Cummings andC. McRirland, Federal Justice 91 (1937). In two lengthy essays 

analyzing the executive departments and the Attorney General in particular, former Attorney General Cushing 

described the department heads as the President's “constitutional counsellors,” his "political or confidential 

ministers,” and his “ constitutional advisers.” 7 Op. Att’y Gen 453 (1855). 6 Op. Att’y Gen. 326 (1854)

481
Assistant Attorney General, Office of Legal Counsel, “Memorandum for the 

Attorney General re: Secrecy of Cabinet Proceedings and Papers” (Oct. 15, 

1954). This advisory relationship to the President, a relationship shared by all 

members of the President’s Cabinet, is constitutionally based. Article II, § 2, of 

the Constitution provides that the President

may require the Opinion, in writing, of the principal Officer in 

each of the executive Departments, upon any Subject relating to 

the Duties of their respective Offices. . . .

With respect to the Attorney General, this constitutional duty was carried over 

into statute by § 35 of the Judiciary Act of 1789, 1 Stat. 93, which required the 

Attorney General “ to give his advice and opinions upon questions of law when 

required by the President of the United States.” This provision is now codified in 

28 U.S.C. § 511.2

We note, as a preliminary matter, that the confidentiality of the communications discussed herein cannot be analyzed without consideration of the contents 

of the communications, including the identities of the persons generating the 

communications and the persons to whom they are addressed, as well as the 

identities of the persons seeking disclosure. Generally speaking, however, the 

conclusions reached in this memorandum, and discussed in detail below, are as 

follows:

1. The President may assert an arguably absolute executive privilege against 

the Legislative Branch and in the courts to protect from disclosure communications involving military, diplomatic, or national security secrets;3 a qualified

2 The original language of § 35 of the 1789 Judiciary Act has remained virtually intact through subsequent 

codifications of the provision. See 28 U.S C. § 511 (1976), which provides:

The Attorney General shall give his advice and opinion on questions of law when required by the 

President.

3 SeeH alkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978), holding that *‘[t]he state secrets privilege is absolute!,]" id. at 

7, but permitting the district court to examine a classified affidavit in camera, in order to satisify itself of the validity 

of the claim of privilege with respect to the underlying classified information

Although the Supreme Court has not stated expressly that the privilege for military, diplomatic, and national 

security secrets is absolute, it has used very strong language to this effect. See, e.g., the Court’s suggestion in 

United States v. Nixon. 418 U.S. 683, 711 (1974), that even in camera examination of documents may be 

inappropriate when a court is satisfied, “from all the circumstances of the case,” that there exists a reasonable 

danger of disclosure of military, diplomatic, or national security secrets'

As to the areas of Art. II duties [involving military or diplomatic secrets,] the courts have 

traditionally shown the utmost deference to Presidential responsibilities In C. & S. Air Lines v. 

Waterman S. S. Corp.. 333 U.S 103, I I I (1948) [(emphasis added)], dealing with Presidential 

authority involving foreign policy considerations, the Court said:

“ The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has 

available intelligence services whose reports are not and ought not to be published to the world. It

would be intolerable that courts, without the relevant information, should review and perhaps

nullify actions c f the Executive taken on information properly held secret.”

In United States v. Reynolds. 345 U.S. 1 [,10] (1953), . . . the Court said:

“ It may be possible to satisfy the court, from all the circumstances of the case, that there is a 

reasonable danger that compulsion of the evidence will expose military matters which, in the 

interest of national security, should not be divulged. When this is the case, the occasion for the 

privilege is appropriate, and the court should not jeopardize the security which the privilege is

meant to protect by insisting upon an examination c f the evidence, even by the judge alone, in

chambers."

418 U .S. at 710-11 (emphasis added). See also United States v. Reynolds, 345 U.S. 1 (1953):

In each case, the showing of necessity [for access to the documents] which is made will determine

C ontinued

482
executive privilege may be claimed to protect law enforcement investigatory files 

and sensitive deliberative communications between the Office of the President 

and the Attorney General’s Office, as well as staff communications within the two 

offices which are reflective of the deliberative process. The President customarily 

reserves exclusively to himself the power to assert the claim of executive 

privilege against Congress.4 However, the Attorney General, as “ head of [an 

executive] department which has control over the matter,” may, after personal 

consideration of the matter, invoke the privilege against others in court. United

States v. Reynolds, 345 U.S. 1, 8 (1953).5

2. The Attorney General may assert a “ deliberative process” privilege pursuant to exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5), 

to withhold from the public nonfactual deliberative communications; absent a 

breach of the confidentiality of the privileged communication, the President, or 

the Attorney General on his behalf, may assert the attomey-client privilege 

pursuant to exemption 5 of the Freedom of Information Act, 5 U .S.C. 

§ 552(b)(5). Similarly, absent a waiver of the privilege, the Attorney General 

may assert the common-law privilege for attomey-client communications, which 

has been codified in Rule 501 of the Federal Rules of Evidence, and Rule 26 of 

the Federal Rules of Civil Procedure, to protect from disclosure in litigation 

certain confidential communications of a legal advisory nature which were 

prepared for the Office of the President.

3. Finally, this memorandum addresses the traditional “ governmental” evidentiary privileges which, although available to the Attorney General, only

how far the court should probe in satisfying itself that the occasion for invoking the privilege is 

appropriate Where there is a strong showing of necessity, the claim of privilege should not be lightly 

accepted, but even the most compelling necessity cannot overcome the claim c f privilege if the court

is ultimately satisfied that military secrets are at stake.

345 U.S. at 11 (footnote omitted) (emphasis added). See generally Daniel. Assistant Attorney General, Civil 

Division, “ Memorandum to All Civil Division Attorneys re' Asserting Claims of Official Governmental Privilege in 

Litigation" (Nov. 1980); Rehnquist, Assistant Attorney General, Office of Legal Counsel. “ Testimony on 

Executive Privilege before the Senate Judiciary Subcommittee on Separation of Powers’* (Aug 4, 1971). C f

AmertcanCivil Liberties Union v. Brown, 619 F. 2d 1170 (7th Cir. 1980) (en banc), and Hal kin v. Helms. supra, both 

construing Reynolds, supra, and Nixon, supra, to permit in camera examinations of documents for which the state 

secrets privilege was claimed in certain exceptional circumstances. American Civil Liberties Union, supra, held 

that a litigant's strong showing of need, e.g., that withheld documents were critical to substantiate a claim of 

constitutional violation, may compel the district court to conduct in camera review of documents allegedly covered 

by state secrets privilege in order to determine whether they are properly classified

4 This limitation on the exercise of the privilege against Congress stems from a practice instituted by Presidents 

Kennedy and Johnson, that “ Executive privilege can be invoked only by the President and will not be used without 

specific Presidential approval.’’ letter from President Kennedy to Congressman Moss (Mar 7, 1962), and 

formalized in President Nixon’s “Memorandum for the Heads of Executive Departments and Agencies” (Mar. 24, 

1969) To date, subsequent administrations have followed this practice. See Olson, Assistant Attorney General, 

Office of Legal Counsel, “ Memorandum to the Attorney General re: Executive Privilege” (Oct 9,1981); Harmon, 

Assistant Attorney General, Office of Legal Counsel, “ Memorandum to All Heads of Offices, Divisions, Bureaus 

and Boards of the Department of Justice" (May 23,1977). See generally Common Cause v. NRC, 674 F. 2d 921,935 

(D.C. Cir 1982) (dictum to the effect that only the President may assert executive privilege).

5 Although assertion of the state secrets privilege clearly requires that the claim be made by the head of an agency, 

the case law governing other claims of executive privilege in litigation is not settled with respect to who must assert 

the privilege. Compare Union Oil v Morton. 56 F.R.D 643 (C.D. Cal 1972); FTC v. Bramman, 54 F.R.D. 364 

(W.D. Mo 1972); (recognizing claims made by persons other than agency heads), with Anchem Products v. GAF

C orp, 64 F.R.D. 550 (N.D. Ga 1974); Carter v Carlson, 56 F.R D. 9 (D.D.C. 1972) See also Daniel, “Asserting 

Claims of Official Governmental Privilege in Litigation," supra note 3 (recommending that all claims of governmental privilege in litigation, other than those relating to the informant’s pnvilege, be formally asserted by the heads 

of agencies).

483
rarely would be applicable to his communications with the President. These 

privileges, which have analogues in the Freedom of Information Act, protect 

(a) confidential information which certain employees or members of the public 

are required to report on government records, (b) the identity of government 

informants, and (c) certain law enforcement investigatory files.6

I. Executive Privilege

The doctrine of executive privilege defines the constitutional authority of the 

Executive Branch to protect documents or information in its possession from 

public disclosure and from the compulsory process of the Legislative and Judicial 

Branches. See Rehnquist, Assistant Attorney General, Office of Legal Counsel, 

Testimony on Executive Privilege Before Senate Judiciary Subcommittee on 

Separation of Powers (Aug. 4, 1971). Executive privilege protects material the 

disclosure of which would significantly impair the conduct of foreign relations, 

the national security, or the performance of the Executive’s lawful duties.7 It also 

shields confidential deliberative communications which have been generated 

within the Executive Branch from compulsory disclosure, in the absence of a 

strong showing of need by the branch seeking disclosure that access to the 

privileged communications is critical to the responsible fulfillment of its constitutional functions. Nixon v. Administrator of General Services, 433 U.S. 425, 

441-55 (1977); United States v. Nixon, 418 U.S. 683, 711-12 (1974); Senate

Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 

730-31 (D.C. Cir. 1974) (en banc). This privilege is based on the need for 

confidentiality of communications among high-level government officials, as 

well as the constitutional doctrine of separation of powers, which provides that 

each branch of government is “ suprem[e] . . . within its own assigned area of 

constitutional duties.” United States v. Nixon, supra at 705.

A . Constitutional and Practical Bases cf the Privilege

The necessity for confidentiality in the advisory relationships between Cabinet 

advisers and the President, and their respective aides, is of both constitutional 

and practical significance. See United States v. Nixon, supra; Senate Select

Committee on Presidential Campaign Activities v. Nixon, supra. See also Opinion of the Attorney General for the President, “Assertion of Executive Privilege

in Response to a Congressional Subpoena,” 43 Op. Att’y Gen. ___ , 5 Op.

O.L.C. 27 (Oct. 13, 1981) (hereafter 1981 Attorney General Opinion); Harmon, 

Assistant Attorney General, Office of Legal Counsel, “Memorandum for the

6 See Daniel, “Asserting Claims of Official Governmental Privilege in Litigation,” supra note 3. See also FOIA

exemption 6, which protects “ personnel and medical files and similar files the disclosure of which would constitute 

a clearly unwarranted invasion of personal privacy,” § 552(b)(6); and exemption 7, which shields certain law 

enforcement investigatory records, § 552(b)(7).

7 Because the types of communications discussed in this memorandum are less likely to implicate military, 

diplomatic, or national security interests, the qualified privilege for Jaw enforcement files, see n 33 infra, and for 

sensitive advisory or deliberative communications, provides a more appropriate focus for our analysis.

484
Attorney General re: The Constitutional Privilege for Executive Branch Deliberations: The Dispute with a House Subcommittee over Documents Concerning 

Gasoline Conservation Fee” (Jan. 18, 1981) (hereafter Hannon Memorandum); 

Rehnquist Testimony, supra.8 It is premised on the need to discuss confidential 

matters which arise within the Executive Branch and to assist the President in the 

discharge of his constitutional powers and duties, by ensuring discussion that is 

free-flowing and frank, unencumbered by fear of disclosure or intrusion by the 

public or the other branches of government. The President and those who assist 

him require candid advice on the wide range of issues which confront the 

Executive, and such candid advice may not be forthcoming if Cabinet advisers or 

their aides must anticipate disclosure of the advice rendered by them and the 

potential public or legislative criticism which might result therefrom.

A unanimous9 Supreme Court in United States v. Nixon, supra, affirmed the 

constitutional underpinnings of the privilege, recognizing the “ protection of 

communications between high Government officials and those who advise and 

assist them in the performance of their manifold duties” as supported by the 

doctrine of separation of powers, and by historic practice.10 The Court described 

this constitutional and historic basis as “ too plain to require further discussion.” 

Id. at 705. See also Senate Select Committee, supra. The Court went on to state 

that “ 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.” United

States v. Nixon, supra at 705. Such “ temper[ed] candor” in presidential advisers’ deliberations clearly would impede the President’s performance of his 

constitutional duty to exercise the executive powers described in Art. II, § 3 of 

the Constitution. See Nixon v. Administrator cf General Services, supra; United

States v. Nixon, supra.

The Supreme Court and lower federal courts have made clear that the presumption of confidentiality accorded presidential communications is intended to 

protect not only the substance of sensitive communications between the President

8 See generally Rankin, Assistant Attorney General, Office of Legal Counsel, “ Memorandum for the Attorney 

General re. Secrecy of Cabinet Proceedings and Papers” at 3 (Oct 15, 1954)*

[T]he special and perhaps most significant aspect of [Cabinet members’] office is that of trusted 

adviser to the Chief Executive in the affairs of the Nation, a relationship which cannot long be 

maintained with respect to those feeling themselves at liberty to make unauthorized disclosures of 

information imparted to them at Cabinet meetings in strict confidence, and accordingly . . . each 

member, to retain the confidence of the President, must constantly bear in mind the overriding need 

for scrupulous observance of the secrecy of Cabinet proceedings and papers

9 Justice Rehnquist did not participate in this decision 418 U.S. at 685

10 The Court noted that the 1787 Constitutional Convention had been conducted by the Framers in complete 

privacy, and that the records of the Convention were sealed for more than 30 years thereafter. 418 U S at 705, n 15 

See 1 M Farrand,The Records OfThe Federal Convention of 1787, pp. xi-xxv (1911),3 Stat. 475, 15th Cong , 1st 

Sess , Res. 8 (1818). See also C Warren, The Making Of The Constitution 134—39 (1937)

The need for confidential deliberations is not unique to the Executive Branch The Framers recognized that some 

congressional deliberations would of necessity be privileged from publication. Art. I, § 5, cl 3, or from questioning beyond the House or Senate floor, Art. I, § 6, cl I. Similarly, judicial deliberations, as well as discussions 

between judges and their law clerks, are undoubtedly privileged, although neither the Executive nor the Legislative 

Branches has ever attempted to challenge the nght of courts to withhold such information. See generally Nixon v. 

Sirica, 487 F.2d 700, 717 (D C Cir. 1973) (en banc); Soucie v. David. 448 F2d 1067, 1080-81(D C Cir 1971) 

(Wilkey, J., concum ng), Henkin, “ The Right to Know and the Duty to Withhold. The Case of the Pentagon 

fcipers,” 120 U. Pa L. Rev 271, 274 (1971)

485
and his advisers but the integrity of the decisionmaking process within the 

Executive Branch as well." See Nixon v. Administrator of General Services,

supra; Senate Select Committee, supra; Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 

1973) (en banc). See also 1981 Attorney General Opinion supra; Harmon 

Memorandum, supra. It is these concerns which justify the invocation of 

executive privilege by the President, or, where appropriate, the heads of executive departments, as well as the “deliberative process” privilege, which may 

be claimed by any federal agency pursuant to exemption 5 of the Freedom of 

Information Act, 5 U.S.C. § 552(b)(5), to withhold documents requested by 

members of the public.12

B. Limitations on the Scope cf the Privilege

Notwithstanding the necessity for confidentiality in executive deliberations, 

the privilege against their disclosure to Congress and the courts is qualified, in 

both scope and application. First, the executive privilege for intragovemmental 

deliberations does not protect materials the disclosure of which would not 

implicate or hinder the Executive Branch’s decisionmaking processes. United

States v. Nixon, supra. Thus, factual, nonsensitive materials—communications 

from the Attorney General which do not contain advice, recommendations, 

tentative legal judgments, drafts of documents, or other material reflecting 

deliberative or policymaking processes—do not fall within the scope of materials 

for which executive privilege may be claimed as a basis of nondisclosure. C f,

e.g ., NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); Taxation With

Representation v. IRS, 646 F.2d 666 (D.C. Cir. 1981); Coastal States Gas Corp.

v. Department c f Energy, 617 F.2d 854, 866-69 (D.C. Cir. 1980).13

Second, even in cases involving sensitive deliberative materials for which a 

claim of privilege may be appropriate, the executive interest in nondisclosure 

must be balanced against the needs of the requesting branch before the validity of 

the claim of privilege can be determined. It is in these cases of potential conflict 

and competing claims of legitimate need by each branch that the separation of

n In its analysis of executive privilege in United States v. Nixon, supra, the Supreme Court discussed the role of 

confidentiality among presidential advisers and concluded:

The expectation of a President to the confidentiality of his conversations and correspondence . . 

is [grounded on] 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 

aw ay many would be unwilling to express except privately. These are the considerations justifying a 

presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.

418 U S. at 708 (footnote omitted).

12 The deliberative process privilege will be discussed infra in part n A.

13 The standard for nondisclosure under a claim of executive privilege is analogous to the “ deliberative process” 

privilege codified in the Freedom of Information Act, 5 U.S.C. § 552(b)(5), which exempts predecisional and 

deliberative documents from the general disclosure mandate of the Act. See generally McClelland v Andrus, 606 

F.2d 1278,1287 n .54(D C. Cir. 1979) However, Congress may not expand the public's statutory right todisclosure 

under FOIA beyond those limits set, in any given case, by the constitutional doctrine of executive privilege, Soucie

v. David, 448 F.2d 1067, 1071-72, n 9, 1081-83 (D.C Cir. 1971); conversely, because of its constitutional basis 

independent of FOIA, Congress may not limit the scope of executive pnvilege by altering the standards for 

disclosure under FOIA. Id.

486
powers principle on occasion must yield to the principles of “ a workable 

government”— “separateness but interdependence, autonomy but reciprocity.” 

United States v. Nixon, supra at 707 (quoting Youngstown Sheet & Tube Co. v. 

Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). These principles 

recognize a “ spirit of dynamic compromise” among the coordinate branches 

when a conflict in authority arises— a spirit which requires each branch to “ take 

cognizance of an implicit constitutional mandate to seek optimal accommodation 

through a realistic evaluation of the needs of the conflicting branches in a 

particular fact situation.” United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 

1977). This duty to recognize and accommodate the legitimate needs of the other 

branches was examined in its constitutional context by the D.C. Circuit in United

States v. AT&T, id. at 130 (footnote omitted):

[I]t was a deliberate feature of the constitutional scheme to leave 

the allocation of powers unclear in certain situations . . . [Thus,] 

the resolution of conflict between the coordinate branches in these 

situations must be regarded as an opportunity 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.

See also 1981 Attorney General Opinion, supra, 5 Op. O.L.C. at 30 (“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” ).

The more generalized the executive interest in withholding the disputed 

information, the more likely it is that the claim of privilege will yield to a 

specific, articulated need related to the effective performance by the coordinate 

branches of their constitutionally assigned functions. Conversely, the more 

specific the need for confidentiality, and the less specific the articulated need of 

the requesting branch for the information, the more likely it is that the Executive’s need for confidentiality will prevail. Nixon v. Administrator cf General

Services, supra; United States v. Nixon, supra. See generally 1981 Attorney 

General Opinion, supra; Harmon Memorandum, supra. Thus, in determining 

whether to assert the privilege, the Executive, in the first instance, must balance 

the “ public” interest14 inherent in the “ general privilege of confidentiality of 

Presidential communications in performance of the President’s responsibilities” 

against the national or public interest in disclosure, as determined by the ability

14 The “ public” interest in nondisclosure derives from the recognized value which accrues to the public from an 

effective executive decisionmaking process, supported by the exchange of “ candid, objective, and even blunt or 

harsh opinions/' United States v. Nixon, supra at 708, and fostered by ensuring the confidentiality of such opinions. 

Nixon v. Sirica, supra at 717 See also McClelland v. Andrus, 606 F.2d 1278, 1287n.55(D.C Cir 1979) (citations 

omitted) (recognizing the “ compelling public [interest in] confidentiality” which is “ [n]owhere more vitally 

involved than in the fidelity of the sovereign’s decision and policy making resources '") See generally Rehnquist 

Testimony, supra

487
of the requesting branch responsibly to fulfill its constitutional duties without the 

assistance provided by the requested documents. United States v. Nixon, supra,

418 U.S. at 706, 711—712. See Nixon v. Sirica, supra, 487 F.2d at 716-17. In 

making such a determination, each document— and the role that it plays in the 

decisionmaking process—must be examined individually. Playboy Enterprises

v. Department of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982); Coastal States,

supra, 617 F.2d at 867.

In the case of Congress, the grant of legislative power in Article I of the 

Constitution implies a requirement that Congress have access to pertinent information, as well as the authority to summon witnesses and to compel the 

production of needed evidence, as a prerequisite to the proper performance of its 

legislative function. Jurney v. MacCracken, 294 U.S. 125 (1935); McGrain v. 

Daugherty, 273 U.S. 135 (1927). See generally Rehnquist Testimony, supra.

Congress’ duty to investigate and inform itself of matters which may involve the 

Executive is very broad, extending “over the whole range of the national interests 

concerning which Congress might legislate or decide upon due investigation not 

to legislate.” Barenblatt v. United States, 360 U.S. 109, 111 (1959). See also

Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504—07 (1975); 

Watkins v. United States, 354 U.S. 178, 187 (1957). See generally Cox, “ Executive Privilege,” 122 U. Pa. L. Rev. 1383, 1426 (1974). This broad-based 

power of inquiry includes matters requiring new or remedial legislation, appropriations of funds, congressional probes into various governmental departments 

to expose corruption, inefficiency, or waste, as well as the administration of 

existing laws or proposed statutes. Yet, these very sources of Congress’ power to 

obtain information also outline the limits of that power: Congress may only 

inquire into those matters on which it may potentially legislate or appropriate— it 

may not inquire into those matters “ which are within the exclusive province” of 

the Executive or the Judiciary. Barenblatt, supra at 112. See Watkins, supra.

Nevertheless, the validity of a claim of privilege for documents demanded by 

Congress in the performance of its legitimate legislating functions, including the 

“ oversight” function, can only be determined by balancing the particular interests of the Legislative and Executive Branches against each other in each case, in 

light of the possibility of accommodation. Senate Select Committee, supra.'5

15 See. e g., 1981 Attorney General Opinion, supra, discussing the relatively weak congressional interest in 

obtaining predecisional, deliberative Executive Branch documents in the context of Congress' performance of its 

general “ oversight" function, as compared to its consideration of specific legislative proposals

At the stage of oversight, the congressional interest is a generalized 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 m scope and the reasons for the request correspondingly general and 

vague. In contrast, when Congress is examining specific proposals for legislation, the information 

which Congress needs to enable it to legislate effectively is usually quite narrow in scope and the 

reasons for obtaining that information correspondingly specific. A specific, articulated need for 

information will weigh substantially more heavily in the constitutional balancing than a generalized 

interest in obtaining information

[Moreover,l the congressional oversight interest will support a demand for predecisional. deliberative documents in the possession of the Executive Branch only in the most unusual circumstances It 

is important to stress that congressional 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

C onim ued

488'
Similarly, with respect to judicial functions, an evaluation must be made of the 

impact of a successful claim of executive privilege on the ability of the Judiciary 

to perform effectively its duties of fair adjudication of controversies and supervision of grand jury investigations. See United States v. Nixon, supra; Nixon v. 

Sirica, supra. As is the case when the privilege is asserted against the Legislative 

Branch, if the information withheld by the Executive is “ demonstrably critical to 

the responsible fulfillment” of the Judiciary’s functions, a generalized claim of 

privilege must fail. Nixon v. Sirica, 487 F.2d at 717 (“the general confidentiality 

privilege must recede before the grand jury’s showing . . . that the subpoenaed 

[information] contain[s| evidence peculiarly necessary to the carrying out of [its] 

vital function.” ). Cf. Senate Select Committee, 498 F.2d at 731.

Notwithstanding these limitations on the scope of the privilege for Executive 

Branch communications, it is not essential that the communications for which the 

privilege is claimed have been directed to or emanated from the President 

himself. See Nixon, “ Memorandum for the Heads of Executive Departments and 

Agencies” (March 24, 1969). See also United States v. AT&T, supra; Harmon 

Memorandum, supra. The underlying rationale of the privilege to foster robust 

and honest debate in the presidential decisionmaking process is as applicable to 

Executive Branch advisers both within and outside the immediate Office of the 

President as it is to the President himself. The Supreme Court, in United States v. 

Nixon, supra, recognized the need for the President “and those who assist him

[to] 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.” 418 U.S. 708 (emphasis supplied). In addition, this office has recently 

expressed the view that because of the importance of the executive department 

heads and their advisers to the President and his closest advisers in presidential 

decisionmaking, it would be “ artificial” to draw a rigid and inflexible line 

between the executive departments and the President’s Office, limiting the reach 

of the constitutional privilege only to the latter. Harmon Memorandum, supra at 

13-14.16 Thus, memoranda prepared by the Attorney General or his assistants 

containing legal or policy advice on issues under consideration by the President 

and his advisers may be properly encompassed by a claim of executive privilege. 

This category of documents would include, for example, staff level advice to 

Assistant Attorneys General concerning matters on which the President has

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 dunng internal deliberations only in the rarest of circumstances.

5 Op O L.C at 29 (citations omitted)

16 Nevertheless, former Assistant Attorney General Harmon’s January 18. 1981, memorandum recognized that 

there exist “ differences of degree” of sensitivity inherent in the broad category of executive deliberations. The 

memorandum pointed out that in deciding whether to claim the privilege, it is especially important to protect the 

integrity of deliberations involving the President himself and his closest advisers.

In accommodating Congress's legitimate need for certain information, the executive branch should 

be least willing to reveal deliberations directly involving the President and his closest advisers, and 

more willing to disclose material from within the executive departments.

Harmon Memorandum, supra, at 13

489
sought advice, staff level advice to officials in the Office of the President, notes of 

middle level staff meetings concerning issues before the President or members of 

his staff, and tentative legal judgments or draft policy statements prepared for the 

President or his staff.

For purposes of invoking executive privilege, communications from the Attorney General, qua the President’s chief legal adviser, should be analyzed in the 

same fashion as communications from other Cabinet advisers and trusted highlevel officials. Unlike the attomey-client privilege, which focuses exclusively on 

communications of a legal advisory nature, executive privilege may be claimed 

for any nonfactual, sensitive deliberative communication for which there exists a 

sufficiently strong public interest in nondisclosure. While it is unlikely that very 

many of the Attorney General’s communications will be in the category of 

communications with regard to which claims of privilege are entitled to the 

strictest deference, e.g ., military, diplomatic, or sensitive national security 

matters, his communications to the President may nevertheless demand greater 

confidentiality than those of some other Cabinet advisers, because of the nature of 

the Attorney General’s responsibilities to the Executive and his special areas of 

expertise, e.g., legal advice and law enforcement. See Harmon Memorandum, 

supra, at 26 .17

UK. The Freedom of Information! Act— Exemption 5: The Deliberative

Process Privilege amid the Attonmey-Cliemt Privilege

Exemption 5 of the Freedom of Information Act (FOIA)18 protects from 

compulsory disclosure to the public, government materials which are “ interagency or intra-agency memorandums or letters which would not be available by 

law to a party other than an agency in litigation with the agency.” 5 U.S.C. 

§ 552(b)(5). This exemption thus codifies the traditional common law privileges 

afforded certain documents in the context of civil litigation and discovery, see

Fed. R. Civ. P. 26; Fed. R. Evid. 501, including the executive “ deliberative

17 In his memorandum to the Attorney General regarding a congressional subcommittee’s demand for certain 

documents from the Department of Energy, Assistant Attorney General Hannon advised:

[T]o whatever extent the customary attomey-client privilege applies to government attorneys, we 

believe that the reasons for the constitutional privilege against the compelled disclosure of executive 

branch deliberations have special force when legal advice is involved None of the President’s 

obligations is more solemn than his duty to obey the law. The Constitution itself places this 

responsibility on him, in his oath of office and in the requirement of article II, section 3 that “ he shall 

take care that the laws be faithfully executed " Because this obligation is imposed by the Constitution 

itself, Congress cannot lawfully undermine the President’s ability to carry it out. Moreover, legal 

matters are likely to be among those on which high government officials most need, and should be 

encouraged to seek, objective, expert advice. As crucial as frank debate on policy matters is, it is 

even more important that legal advice be “candid, objective, and even blunt or harsh,” see United

States v. Nixon, 418 U.S. 683,708 (1974), where necessary. Any other approach would jeopardize 

not just particular policies and programs but the principle that the government must obey the law. For 

these reasons, it is critical that the President and his advisers be able to seek, and give, candid legal 

advice and opinions free of the fear o f compelled disclosure 

Harmon M emorandum, supra, at 26

18 While other exemptions to the FOIA occasionally may be applicable to the types of communications discussed 

in this memorandum, e g., the exemption 7 privilege for law enforcement investigatory records, see 5 U.S.C. 

§ 552(b)(7) discussed in part III C ., infra, because of the Attorney General’s advisory relationship to the President, 

most such communications will come within the privileges embraced by exemption 5.

490
process” privilege, NLRB v. Sears, supra; EPA v. Mink, 410 U.S. 73 (1973); 

Taxation With Representation v. IRS, 646 F.2d 666 (D.C. Cir. 1981); the attomeyclient privilege, Brinton v. Department cf State, 636F.2d600,603-04 (D.C. Cir. 

1980), cert, denied, 452 U.S. 905 (1981); M ead Data Central v. United States

Department cf Air Force, 566 F.2d 242, 252—55 (D.C. Cir. 1977); and the 

attorney work-product privilege,NLRB v. Sears, Roebuck& Co., 421 U.S. 132, 

154 (1975); Bristol-Myers Co. v. FTC, 598 F.2d 18 (D.C. Cir. 1978), as applied 

to document requests of government agencies from members of the public. See

also Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir.

1980). AH of these privileges encompassed by exemption 5 may be claimed, in 

appropriate circumstances, to protect communications between the Attorney 

General’s Office and the Office of the President from compulsory disclosure to 

members of the press and the general public.19 Nevertheless, even though the 

FOIA exemptions noted above are analogous to the common law evidentiary 

privileges which have been incorporated by implication into the Act, the standards for asserting the evidentiary privileges can serve only as a “ rough guide” 

to the courts in determining the validity of FOIA exemption claims. This is so 

because

decisions as to discovery are usually based on a balancing of the 

relative need of the parties, and standards vary according to the 

kind of litigation involved. Furthermore, the most fundamental 

discovery and evidentiary principle, relevance to the issues being 

litigated, plays no part in FOIA cases.

Coastal States, supra, at 862, citing EPA v. Mink, 410 U.S. 73, 86 (1973). See

also Playboy Enterprises v. Department cf Justice, 677 F.2d 931, 936 (D.C. Cir. 

1982); McClelland v. Andrus, 606 F.2d 1278, 1287 nn. 54, 55 (D.C. Cir. 

1979).20

A. “Deliberative Process” Privilege

The “ deliberative process” privilege under FOIA is substantially similar in 

scope and purpose to the deliberative process aspect of executive privilege,

19 The exemptions contained in the Freedom of Information Act do “ not [provide] authonty to withhold 

information from Congress." 5 U.S.C. § 552(c)

20 In explaining the relationship between the privileges under FOIA and the evidentiary privileges in litigation, 

the D C. Circuit stated:

[T]he analysis contained in Exemption 5 cases is applicable [to common law dtscovery cases] 

because Exemption 5 exempts only those documents normally privileged in the civil discovery 

context NLRB v Sears. Roebuck& Co , 421 U.S. 132, 148-49 . . (1975);EPA v Mink, . . . 410 

U S .a t8 5 -8 6 . . (1973); Vaughn v Rosen, 523F.2dat 1143(1975). Thus in effect Exemption

5 is co*extensive with the common law discovery privileges: Exemption 5 shields from a member of 

the public seeking a document under FOIA that which would be shielded from a litigant seeking 

discovery from an agency. There is, however, an additional factor to be considered in the discovery 

context that is not considered in the FOIA context . When a party seeks discovery against the 

Government and the Government interposes a claim of privilege, it is appropriate for the court to 

consider the litigant's need for the material. But when a member of the public seeks access to material 

under FOIA and the Government claims that the material comes within the purview of Exemption 5, 

disclosure is permitted of that which would “ routinely be disclosed" in private litigation. H.R Rep.

No 1497, 89th Cong , 2d Sess .10(1966). Stated differently, the extent c f the requester's need is not

considered in the FOIA context

McClelland v. Andrus, supra, at 1287, n.54 (emphasis supplied).

491
discussed above. Although both privileges apply generally to the same types of 

documents, the primary differences between the two privileges lie in their 

respective applications. First, executive privilege traditionally has been invoked 

only by the President to shield documents from disclosure to Congress, and by 

the President or the head of any executive department or agency in judicial 

proceedings.21 FOIA exemptions, in contrast, may be claimed by the head, or 

other designated official, of any government agency in possession of documents 

for which a request has been made by a member of the public. Second, as noted 

above, claims of executive privilege for deliberative documents must be balanced 

against the public interest in disclosure, which is frequently analyzed in terms of 

the requesting government institution’s ability to perform its functions responsibly— whether legislative investigations or judicial resolution of disputes— without gaining access to the disputed materials. In considering the claims of 

exemptions under FOIA, however, the requestor’s interest in or need for the 

documents is irrelevant. See H.R. Rep. No. 1497, 89th Cong., 2d Sess. 10 

(1966); M cClelland v. Andrus, supra. Notwithstanding these differences, the 

analyses involved in the applications of the two privileges are very similar.

As in the case of executive privilege, the “ deliberative process” privilege 

embraced by exemption 5 was intended to protect the integrity of the decisionmaking process and to promote full and frank deliberations during that process. 

However, consistent with the strong disclosure policy of FOIA, the privilege is to 

be considered “ ‘as narrowly as [is] consistent with efficient Government operation.’” Coastal States, supra, 617 F.2d at 868, quoting from S. Rep. No. 813, 

89th Cong., IstSess. 9 (1965). See also FBI v. Abramson, 456 U.S. 615,629-32 

(1982); Department of Air Force v. Rose, 425 U.S. 352, 360-62 (1976). The 

privilege exempts documents which are advisory or recommendatory in nature, 

reflecting “ the give-and-take of the consultative process . . ., weighing the pros 

and cons of agency adoption of one viewpoint or another,” Coastal States, supra,

617 F.2d at 866, and “ other subjective documents that reflect the personal 

opinions of the writer prior to the agency’s adoption of a policy.” Taxation With

Representation, supra, 646 F.2d at 677. See also NLRB v. Sears, supra, 421 U.S. 

at 150; Brintonv. Department of State, supra, 636F.2dat604—06. In the words of 

the D.C. Circuit, which has developed a considerable body of law construing the 

deliberative process privilege:

[The privilege] was created to protect the deliberative process of 

the government, by ensuring that persons in an advisory role 

would be able to express their opinions freely to agency decisionmakers without fear of publicity. . . . Such consultations are an 

integral part of [an agency’s] deliberative process; to conduct this 

process in public view would inhibit frank discussion of policy 

matters and likely impair the quality of decisions.

21 See nn. 4, 5, supra.

492
Ryan v. Department of Justice, 617 F.2d 781, 789—90 (D.C. Cir. 1980) (footnote 

omitted). In addition, the privilege was designed to

protect against premature disclosure of proposed policies before 

they have been finally formulated or adopted; and to protect 

against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a 

course of action which were not in fact the ultimate reasons for the 

agency’s action.

Coastal States, supra, 617 F.2d at 866.

Applying this standard to the materials discussed in this memorandum, 

documents reflecting the internal details involved in the preparation of formal 

Attorney General opinions or Office of Legal Counsel opinions, as well as the 

more informal predecisional working papers which pass between and within the 

Attorney General’s Office and the Office of the President, would be included in 

this category of deliberative documents protected by exemption 5. See, e.g .,

Brinton v. Department cf State, supra (holding that opinions prepared by the 

Office of the Legal Adviser for the Secretary of State fell within the deliberative 

process privilege of exemption 5).

The courts have held, however, that “deliberative process” privilege does not

protect documents which reflect final opinions, statements of reasons supplying 

the bases for decisions, or policies actually adopted, or documents that otherwise 

constitute the “ working law” of an agency. See NLRB v. Sears, supra, 421 U.S. 

at 152—53; Taxation With Representation, supra, 646 F.2d at 678; Coastal States,

supra, 617 F.2d at 866-68. The rationale underlying the “ final opinion” exception to the deliberative process privilege is to prevent agencies from developing a 

body of “ secret law” veiled by the exemption 5 privilege— the maintenance of 

which “ would weigh heavily against the public interest.” Sterling Drug, Inc. v. 

FTC, 450 F.2d 698, 715 (D.C. Cir. 1971). See Brinton v. Department cf State,

supra, 636 F.2d at 605. Thus, decision documents of the Office of the President, 

deliberative materials “ incorporated” into those documents, and opinions of the 

Attorney General which have been “ incorporated” into the President’s final 

document, would be subject to disclosure under FOIA. See EPA v. Mink, 410 

U.S. 73 (1973).22

22 “ Final opinions” of the Office of Legal Counsel or the Attorney General, which were written for the President 

and form part of the basis of the President’s final action, but which have not been “ incorporated” into the President's 

final decision document, would be protected from disclosure under exemption 5 s pnvilege for attomey-chent 

communications, as well as the deliberative process pnvileges. See Brinton v Dep't c f State, supra. Mead Data

Central, supra

If the “ final opinions” from the Attorney General’s Office are nor of a legal advisory nature— or are otherwise 

ineligible for a claim of attomey-client pnvilege— an analysis must be made regarding the purpose of the opinion 

documents in issue If the opinion is a predecisional document—i.e.. the document presents the Attorney G eneral’s 

views on a particular matter which will be considered by the President in taking final executive action, or in the case 

where final executive action has already been taken but the Attorney General submits a document which “ provide[s] 

guides for decisions of similar or analogous cases ansing in the future”—the Supreme Court has stated that the 

document is exempted from FOIA’s disclosure mandate as a deliberative document NLRB v Sears, supra, 421 

U.S. at 152, n. 19. If the Attorney General’s “ final opinion” is postdecisional, as are most final opinions— i e.,

Continued

493
Nor does the privilege extend to documents of a purely factual nature. In the 

case of documents of a mixed factual/deliberative nature, factual materials which 

can reasonably be severed from the deliberative or advisory segments of the 

document without compromising the confidential remainder of the document 

must be disclosed. EPA v. Mink, supra, 410 U.S. at 91. However, “ factual 

segments [of advisory documents] are protected from disclosure as not being 

purely factual if the manner of selecting or presenting those facts would reveal the 

deliberate process, or if the facts are ‘inextricably intertwined’ with the policymaking process.” Ryan v. Department cf Justice, supra, 617 F.2d at 790 

(footnotes omitted). See Playboy Enterprises v. Department cf Justice, supra.23

B. Attorney-Client Privilege

Exemption 5 of FOIA also embraces the common law evidentiary privilege for 

attomey-client communications. 5 U.S.C. § 552(b)(5); Fed. R. Civ. P. 26; Fed. 

R. Evid. 501.24 See NLRB v. Sears, supra, 421 U.S. at 154 \M eadD ata Central,

supra. The attomey-client privilege protects confidential disclosures of a client to 

his or her attorney, which were made in order to obtain legal assistance and not for 

the purpose of committing a crime or tort. 8 Wigmore, Evidence § 2290-2329

communications which “ look[] back on and explain[] a decision already reached or a policy already 

adopted” — the opinion would not be exempt from FOIA’s disclosure mandate, since disclosure would pose “ a 

negligible risk of denying to agency decisionmakers the uninhibited advice which is so important to agency 

decisions.” Id.

In its companion case lo NLRB v Sears, supra. Renegotiation Bd. v Grumman Aircraft Engineering Corp., 421 

U S 168, 184-85 (1975), the Court set forth the additional consideration of whether the author of the “ final 

opinion” possesses decisional authonty with reference to matters addressed in the opinion. Thus, if the subject of 

the Attorney General’s opinion, or other Department of Justice communication, involves a matter over which the 

Office of the President has final decisional authority, the opinion necessarily is predecisional, and therefore exempt 

from disclosure, even if the opinion represents the “ final” view or disposition of the Department of Justice on the 

matter. Of course, the final action taken by the Office of the President may incorporate the Attorney General’s 

advisory opinion— in which case, it would lose its predecisional character and become subject to disclosure See

also Brinton v. D ep't c f State, supra. 636 F 2d at 605 (holding that legal opinions prepared by the Office of the Legal 

Adviser for the Secretary of State were properly withheld on the ground that the Legal Adviser's opinions were not 

“ final opinions” as contemplated by the FOIA, inasmuch as the Legal Adviser “ has no authority lo make final 

decisions concerning United States policy [,] [i]nstead, his role is to give advice to those in the State 

Department who do make the policy decisions.” ).

23 The D.C. Circuit recently rejected the Department’s claim of privilege for a 302-page document prepared by a 

task force of the Office of Professional Responsibility of the Department of Justice for the Attorney General. The 

document reported the results of an eight-month investigation into the circumstances sun-ounding the infiltration of 

an FBI informant into the Ku Klux Klan Playboy Enterprises v. D ep't cf Justice, supra, 677 F.2d 931 Against the 

Department’s claim that the entire report “ reflect[ed] the ‘choice, weighing and analysis of facts’ by the task force 

and [was] therefore protected as a part of the deliberative process,” 677 F.2d at 935, ihe court of appeals held that the 

report was, for the most part, not exempt from disclosure, and remanded to the district court for a determination of 

those limited portions of the report which were properly exempt, as containing conclusions, recommendations, or 

opinions and were severable from the factual portions of the document The court stated:

We are not persuaded by the Department’s argument. Anyone making a report must of necessity 

select the facts to be mentioned in it; but a report does not become a part of the deliberative process 

merely because it contains only (hose facts which the person making Ihe report thinks material. If this 

were not so. every factual report would be protected as p£rt of the deliberative process.

Id.

24 The attomey-chent pnvilege is a common law evidentiary pnvilege which has been codified in Rule 501 of the 

Federal Rules of Evidence and Rule 26 of the Federal Rules of Civil Procedure for use in civil litigation and 

discovery. While the Rules are not applicable to congressional subpoenas, the interests implicated by the attomeyclient pnvilege generally are subsumed under a claim of executive pnvilege when a dispute arises over documents 

between the Executive and Legislative Branches, and the considerations of separation of powers and effective 

performance of constitutional duties determine the validity of the claim of pnvilege

494
(McNaughton rev. 1961). See Upjohn v. United States, 449 U.S. 383 (1981); 

Fisher v. United States, 425 U.S. 391 (1976). Notwithstanding its overall 

purpose to protect the client’s factual disclosures, the privilege has been extended 

by federal courts to include an attorney’s communications to his or her client in 

order to prevent inadvertent disclosure, either directly or by implication, of 

information which the client had previously confided to the attorney, as well as to 

foster the attorney’s ability to give sound and informed professional advice. 

Coastal States, supra, 617 F.2d at 862; Mead Data Central, supra, 566 F.2d at 

254 n.25.

Like the executive and deliberative process privileges, the attomey-client 

privilege is designed to encourage full and frank discussions among the persons 

whose communications are protected and thereby to “ promote [the] broader 

public interests in the observance of law and administration of justice.” Upjohn,

supra, 449 U.S. at 389. To this end, “ (t]he privilege recognizes that sound legal 

advice or advocacy . . . depends upon the lawyer’s being fully informed by the 

client.” Id. See also Mead Data Central, supra, 566 F. 2d at 252 (“The opinion of 

even the finest attorney . . . is no better than the information which his client 

provides. In order to ensure that a client receives the best possible legal advice, 

based on a full and frank discussion with his attorney, the attomey-client privilege 

assures him that confidential communications to his attorney will not be disclosed 

without his consent.” ). See generally 2 J. Weinstein and M. Berger, Weinstein’s 

Evidence K 503 (1982).

Although the attomey-client privilege traditionally has been recognized in the 

context of private attomey-client relationships, the privilege also functions to 

protect communications between government attorneys and client agencies or 

departments, as evidenced by its inclusion in the FOIA, much as it operates to 

protect attomey-client communications in the private sector. See Brinton v. 

Department cf State, supra, 636 F.2d at 603-04; Mead Data Central, supra, 566 

F.2d at 252-55; Jupiter Painting Contracting Co. v. United States, 87 F.R.D. 

593,598 (E.D. Pa. 1980); Falcone v. Internal Revenue Service, 479 F. Supp. 985, 

989-90 (E.D. Mich. 1979). See also Office of Legal Counsel, “ Memorandum 

for Helen S. Lessin, Director, Federal Legal Council, re: OLC Policies Regarding Issuance and Release of Opinions” (Sept. 10, 1980).25

The Supreme Court’s recent opinion in Upjohn, supra, analyzing the scope of 

the corporate “ client” for purposes of the attomey-client privilege, is helpful to 

our consideration of the privilege in the context of the Attorney General and the 

Office of the President. In Upjohn, supra, the Court discarded the restrictive 

“control group” test26 for determining which communications are within the 

scope of the privilege in a corporate setting, in favor of a broader scope of 

“client,” more suited to the purposes of the privilege. The Court noted that the

25 In addition. Government attorneys, no less than private attorneys, are bound by the ABA Code of Professional 

Responsibility's disciplinary rule DR 4— 101(B). which provides that a lawyer shall not knowingly reveal a 

confidence or secret of his client unless the client consents to such disclosure.

26 The control group test restricts the definition of “ client” for purposes of the pnvilege to “ upper-echelon 

management” officials “ responsible for directing (the client corporation's] actions in response to legal advice ” 449 

U.S at 388. 391.

495
privilege was designed to protect both the giving of professional advice to those 

who are charged with the actual implementation of the client corporation’s 

policies, as well as the communication of information to the attorney sufficiently 

specific to enable him or her to provide sound, practical, and informed legal 

advice. Id. at 390. These purposes were frustrated by the narrow scope of 

privileged communications recognized by the “ control group” test.

While the Upjohn decision studiously avoided setting forth a precise formulation of the scope of the attomey-client privilege in the corporate or governmental 

setting, the Court was nonetheless insistent in its view that application of the 

privilege had to be determined in each case to serve the purposes of the privilege. 

In view of the criticism expressed in the Upjohn decision of the control group test, 

it is likely that, in most instances, the “client” in the context of communications 

between the President and the Attorney General, and their respective aides, 

would include a broad scope of White House advisers in the Office of the 

President. The “ functional” analysis suggested by Upjohn focuses on whether 

the privilege would encourage the communication of relevant and helpful information from advisers most familiar with the matters on which legal assistance is 

sought, as well as whether the privilege is necessary to protect and encourage the 

communication of frank and candid advice to those responsible for executing the 

recommended courses of action. A corollary to this expanded concept of the 

“ client,” which reflects the realities of the governmental setting, is that the 

“ attorney” whose communications are subject to the attomey-client privilege 

may, in fact, be several attorneys responsible for advising the “client” agency or 

division regarding the prudence and propriety of proposed courses of conduct. 

Thus, advice given by the various Assistant Attorneys General and their staffs 

may be subject to the privilege. See, e.g., Brinton v. Department cf State,

supra.21

Notwithstanding these notions of “ attorney” and “client” which the Court has 

expanded to implement fully the purposes of the privilege, the actual operation of 

the privilege continues to be governed by the traditional guidelines and procedures.28 As in the traditional attomey-client context, once the privilege has 

attached, only the client, in this case the President or some other high level 

official in the Office of the President who is responsible for receiving and acting 

on the legal advice, may waive it. Thus, for example, a FOIA request lodged with 

the Department of Justice for information communicated to the Office of the 

President by the Attorney General which is protected by the attomey-client 

privilege should not be honored unless the Office of the President consents to 

release of the information. See Office of Legal Counsel, “Memorandum for 

Helen S. Lessin,” supra. See generally Harmon, Memorandum for Patricia M.

27 Although the Brinton decision was ultimately decided on deliberative process grounds, the attomey-chent 

privilege aspect of exemption 5 was discussed at length by the court.

28 See United States v. Anderson, 34 F.R D. 518, 523 (D Colo. 1963), for application of the traditional attomeychent privilege formulation in the governmental context'

[T]he documents are privileged insofar as they do not comment or report on information coming 

from persons outside the government or from public documents, or are summaries of conferences 

held with or in the presence of outsiders, and were produced with the idea of obtaining or receiving 

legal advice.

496
Wald, Assistant Attorney General, Office of Legislative Affairs, “ Formulation of 

Policy on Disclosure of Information to Congress” at 8, 10 (July 19, 1977).

In addition, the person seeking to assert the privilege—either the client or the 

attorney on the client’s behalf—must be able to demonstrate that the confidential 

disclosures “ might not have been made absent the privilege,” Fisher v. United

States, supra, at 403, and that the underlying facts for which the privilege is 

claimed have remained confidential. Mead Data Central, supra, at 253. See also

Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981); Brinton v. 

Department of State, supra.29 Applying this rule to President-Attomey General 

communications, the circulation of advisory documents outside the operative 

circle of officials responsible for giving or receiving advice in the Office of the 

President or the Department of Justice, or, the reporting of factual information 

acquired from persons or sources outside the privileged relationship, would 

constitute a waiver, whether express or implied, of the privilege with respect to 

those documents and would subject them to disclosure, unless exempt from the 

Freedom of Information Act pursuant to some other exemption. See Permian

Corp. v. United States, supra;30 Brinton v. Department cf State, supra. Advisory 

documents from the Attorney General which have been turned over to congressional committees are presumed to be no longer confidential and may not be 

the basis of a claim of attomey-client privilege. See generally Harmon, “ Formulation of Policy on Disclosure of Information to Congress,” supra.31 See also

Permian Corp. v. United States, supra, at 1220-22. However, these same 

documents may be subject to the deliberative process privilege under exemption 

5.32

29 The requirement lhat the confidential disclosures for which the privilege is sought have remained confidential 

does not preclude the privilege's proper attachment lo communications which have been circulated in a limited 

fashion beyond the attorney and the person within the group requesting legal advice. See Upjohn v United States,

supra, at 395; Coastal States, supra, at 863; Mead Data Central, supra, at 253 n.24. This broader scope of the 

confidentiality requirement is particularly appropriate in the corporate and governmental contexts. See discussion,

infra

30 In Permian Corp , supra, the D.C. Circuit held that the voluntary disclosure of confidential materials to a third 

party outside the privileged relationship, in this case, the SEC, constituted a waiver of the privilege with respect to 

those documents, notwithstanding the SEC’s agreement to protect the documents from further disclosure. Thus, the 

court rejected the rule of “ limited waiver,” followed by the Eighth Circuit in Diversified Industries, Inc. v. 

Meredith, 572 F 2d 596 (1977) (en banc), and concluded that the pnvilege could no longer be invoked to protect the 

documents from being disclosed by the SEC to another government agency*

The Eighth Circuit’s “ limited waiver” rule has little to do with [the] confidential link between the 

client and his legal advisor Voluntary cooperation with government investigations may be a laudable 

activity, but it is hard to understand how such conduct improves the attomey-client relationship If the 

client feels the need to keep his communications with his attorney confidential, he is free to do so 

under the traditional rule by consistently asserting the privilege, even when the discovery request 

comes from a “ fnendly” agency.

*****

[T]he attomey-client pnvilege should be available only at the traditional pnce. a litigant who wishes 

to assert confidentiality must maintain genuine confidentiality 

665 F2d at 1220-21, 1222 (footnote omitted).

31 Former Assistant Attorney General Hannon suggested that even the “ limited disclosure” involved in disclosing privileged materials to an executive session of Congress, or in a nonpublic administrative heanng, “ would 

appear to undermine the theoretical predicate of the privilege,” as applied in the civil discovery context. “ The 

purpose of a privilege is to protect confidential communications necessary to promote certain relationships, once 

this confidentiality is breached, the rationale for granting the pnvilege no longer applies ” “ Formulation of Policy 

on Disclosure of Information to Congress,” supra, at 5 (citations omitted)

32 There is an additional pnvilege available under exemption 5 which may be invoked, when appropnate, to

C ontinued

497
III. Tlhe “Governmental” Evidentiary Privileges—and Their Freedom off

Information Act Counterparts

The so-called “ governmental” evidentiary privileges are common law privileges, now incorporated into the Federal Rules of Civil Procedure and the 

Federal Rules of Evidence, which have traditionally been available exclusively to 

the government as a litigant. Daniel, Assistant Attorney General, Civil Division, 

“ Memorandum to All Civil Division Attorneys re: Asserting Claims of Official 

Government Privilege in Litigation” (Nov. 1980). See generally McClelland v. 

Andrus, supra, at 1286, n.53, quoting Association for Women in Science v. 

Califano, 566 F.2d 339 (D.C. Cir. 1977). These privileges—the informant’s 

privilege, the law enforcement investigatory files privilege,33 and the privilege 

for confidential information on required reports34—supplement the deliberative 

process, attomey-client and work-product privileges discussed above which are 

available to governmental as well as private parties in the civil litigation and 

discovery contexts. See Fed. R. Civ. P. 26; Fed. R. Evid. 501. These “ governmental” privileges are necessary to protect the ability of the Executive Branch to 

discharge its duties under the Constitution and the laws of the United States, but 

because their assertion in litigation does not raise the problems of a constitutional 

conflict with a coequal branch, these privileges may be invoked by the head of the 

executive department in possession or control of the requested documents, or his 

or her delegate.35 See Association for Women in Science v. Califano, supra. See

also M cClelland v. Andrus, supra; Daniel, “Asserting Claims of Official Governmental Privilege in Litigation” (Nov. 1980). These privileges also have

protect communications from the Office of the Attorney General to the Office of the President— the work-product 

privilege The work-product privilege under exemption 5 of the FOIA protects documents prepared in contemplation of litigation which reflect the “ mental processes” of attorneys. The work-product pnvilege is distinct 

from the attomey-client pnvilege in that “ it provides a working attorney with a ‘zone of privacy’ within which to 

think, plan, weigh facts and evidence, candidly evaluate a client's case, and prepare legal theones ” Coastal States,

supra, at 864. While the attomey-client privilege is designed to protect the client’s interest in confidentiality, the 

purpose of the work-product pnvilege is to protect “ the adversary tnal process itself.” Id.

Because it is limited to documents prepared in contemplation of litigation, the work-product privilege is the least 

invoked of the exemption 5 pnvileges in the context of President-Attomey General communications The broad 

advisory role that the Attorney General plays vis-&-vis the President, together with the President’s general lack of 

involvement in litigation strategies, makes their communications far more suited to the deliberative process and 

attomey-client privileges as a basis for nondisclosure in litigation or under FOIA.

33 The investigatory files privilege—which frequently encompasses information which might reveal the identity 

or statements of informants— protects interests which may be asserted under a claim of executive privilege also, if 

the interests are sufficiently strong in a particular case to implicate constitutional concerns. See 40 Op. Att’y Gen. 

45. See also Office of Legal Counsel, “ Executive Privilege in Litigation for Investigative Files” (September 18, 

1981); Harmon, “ Memorandum to All Heads of Offices, Divisions, Bureaus, and Boards of the Department of 

Justice,” (May 23, 1977), Rehnquist Testimony, supra. However, because these interests rarely impinge on the 

performance of constitutional functions of the Executive Branch to the same degree as the “ state secrets” or 

deliberative process components of the privilege, the privilege is generally asserted simply as an evidentiary 

pnvilege in litigation.

34 The privilege for confidential information on required government reports is similar to the informant's 

privilege, see discussion at 3 1, infra, in that it protects information solicited by the government for its purposes on a 

promise of confidentiality. This pnvilege, like its FOlA-exemption 6 counterpart, protects accident reports, 

employment history reports, financial disclosures, conflict-of-interest reports, and other information, the disclosure 

of which would constitute a “ clearly unwarranted invasion of personal pnvacy ” 5 U.S.C. § 552(b)(6). See Dep’t c f

State v Washington Post C o., 456 U S. 595 (1982). D ep’t c f the Air Force v. Rose, 425 U.S. 352 (1976); A stfnfor

Women in Science, supra. Of the pnvileges discussed in this memorandum, this is the least likely privilege to be 

invoked in the context of President-Attomey General communications.

35 See generally n.5, supra.

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analogues in the Freedom of Information Act under exemptions 6 and 7, 5 

U.S.C. §§ 552(b)(6),(7), to shield documents of the same general type from 

disclosure to members of the public. As noted in the foregoing discussion of the 

evidentiary privileges incorporated into exemption 5 of the FOIA, the court must 

strike a balance between “ the public concern in revelations facilitating the just 

resolution of legal disputes [on the one hand,] and, on the other, occasional but 

compelling needs for confidentiality,” McClelland v. Andrus, supra at 1287, 

n.55, in deciding claims of privilege in the litigation context.

A. Informant’s Privilege

The informant’s privilege permits the government to withhold the identity of 

persons who furnish information concerning violations of the law, or otherwise 

render assistance, to officers charged with law enforcement responsibilities. See

8 C. Wright & A. Miller, Federal Practice & Procedure, § 2019 at 155 (1970); 

Roviaro v. United States, 353 U.S. 53 (1957); Black v. Sheraton Corp. cf

America, 47 F.R.D. 263 (D.D.C. 1969), a ffd 564 F.2d 550 (D.C. Cir. 1977). 

The informant’s privilege recognizes that prospective informants usually condition their cooperation with law enforcement officers on an assurance of anonymity in order to protect against physical harm or other undesirable consequences to themselves and their families which would very likely result as a 

consequence of disclosure. United States v. Tucker, 380 F.2d 206, 213 (2d Cir. 

1967). Although this privilege protects only the identity of the informant, 

information provided by the informant may also be shielded under this privilege 

if its disclosure would reveal the informer’s identity. Rovario v. United States,

supra, at 60. The informant’s privilege, like the other privileges discussed above, 

is qualified; therefore, the government must show that its interest in effective law 

enforcement outweighs the litigant’s need for the information. See Rovario v. 

United States, supra; In re Attorney General cf United States, 596 F.2d 58 (2d 

Cir. 1979); 2 J. Weinstein and M. Berger, Weinstein’s Evidence H 510[02] at 

510-18 (1982).

B. Law Enforcement Investigatory Files Privilege

Like the informant’s privilege, the privilege for law enforcement investigatory 

files is necessary to protect against the harm that would flow from public 

disclosure of information contained in the files and to facilitate the government’s 

law enforcement process. See Black v. United States, 564 F.2d 531 (D.C. Cir. 

1977); Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970). Disclosure of open 

investigatory files36 would undercut the government’s efforts to prosecute criminals by disclosing investigative techniques, forewarning suspects under inves36 As is apparent from the reasons underlying the pnvilege, the law enforcement investigatory files pnvilege does 

not apply lo files pertaining to investigations which have been closed, although information protected by another 

privilege, e.g., the informant’s pnvilege, would continue to be shielded. See 2 Weinstein’s Evidence 11 509(07) at 

509-52-58 (1982). Cf. Supreme Court’s recent discussion of FOIA exemption 7 in FBI v. Abramson, 456 U.S. 

615 (1982)

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tigation, deterring witnesses from coming forward, and prematurely revealing 

facts supporting the government’s case.37 The privilege for law enforcement 

investigatory files is a qualified privilege, and may be overcome by a strong 

showing of need or interest in disclosure of the information. See Black v. United

States, supra.

C. FOIA Exemption 7

Exemption 7 of the Freedom of Information Act incorporates these privileges 

for law enforcement records to protect the information contained therein from 

compulsory disclosure to members of the public. Exemption 7 exempts from the 

general disclosure mandate of the FOIA those matters which are

investigatory records compiled for law enforcement purposes, but 

only to the extent that the production of such records would 

(A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose 

the identity of a confidential source and, in the case of a record 

compiled by a criminal law enforcement authority in the course of 

a criminal investigation, or by an agency conducting a lawful 

national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or 

physical safety of law enforcement personnel!.]

5 U.S.C. § 552(b)(7). The subparts of § 552(b)(7) make clear that the interests 

protected therein are roughly analogous to those protected by the “ governmental” privileges in litigation for informant’s identity and law enforcement investigatory files. See generally FBI v. Abramson, supra; NLRB v. Robbins Tire &

Rubber Co., 437 U.S. 214 (1978); Lesar v. Department cf Justice, 636 F.2d 472 

(D.C. Cir. 1980), Church cf Scientology c f Calif, v. Department cf Justice, 612 

F. 2d 417 (9th Cir. 1979).

IV. Conclusion

The privileges available to protect the confidentiality of the Attorney General’s 

communications with the Office of the President can be roughly categorized into 

three classes, depending upon the nature of the communications for which the 

privilege is asserted, the interests which are sought to be protected by the claim of 

privilege, and the persons against whom the claim is made. This memorandum 

represents an effort by this Office to provide the Attorney General with a general 

outline of the privileges available to him to protect his confidential communica37 See also former Attorney General Jackson s opinion at 40 Op. Att’yGen 45 (1941), concluding lhat premature 

disclosure of law enforcement investigative reports to Congress or the public could prejudice the nghts of 

prospective defendants whose investigations are the subject of the reports.

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tions and working papers from compulsory disclosure when he believes that 

disclosure would be against the interests of the Department, the President, or the 

broader “ public,” and to provide guidelines for the assertion of those privileges. 

While the foregoing discussion should prove helpful in providing a framework 

for analysis of potential claims of privilege, we would caution that the applicability of any privilege to a given set of circumstances will almost always 

involve a judgment of competing values. While the Attorney General or the client 

must decide initially whether to assert the privilege, the task of resolving 

conflicts arising out of such competing values, in the final analysis, is one that is 

reserved to the courts.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office of Legal Counsel

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