Assertion of Executive Privilege for Documents Concerning

Conduct of Foreign Affairs with Respect to Haiti

Executive privilege may properly be asserted with respect to certain documents subpoenaed by the 

Committee on International Relations o f the House of Representatives that concern the Administration’s conduct of foreign affairs with respect to Haiti.

September 20, 1996

THE PRESIDENT

THE WHITE HOUSE

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

executive privilege may properly be asserted with respect to documents that are 

the subject of a subpoena issued to the Executive Secretary of the National Security Council (“ NSC” ) by the Committee on International Relations of the House 

of Representatives. The documents concern the Administration’s conduct of foreign affairs with respect to Haiti.

The Counsel to the President and the National Security Adviser recommend 

that you assert executive privilege with respect to all but four of the subpoenaed 

documents. Several of the documents record diplomatic meetings or other communications between the President, the Vice President, the National Security Adviser, 

or the Deputy National Security Adviser and the President or Prime Minister of 

Haiti. Other documents constitute confidential communications from NSC or State 

Department officials to the President or the Vice President. The remaining documents reflect and constitute the deliberations of the NSC and its staff in connection 

with their advice and assistance to the President regarding his policy and activities 

in Haiti. I understand that efforts have been made to accommodate the Committee’s information needs with respect to these documents, but they have proven 

unavailing. The Counsel to the President and the National Security Adviser are 

appropriately concerned that the Committee’s demand raises significant separation 

of powers concerns and that compliance with it would compromise your ability 

to conduct the foreign affairs of the United States, as well as the ability of the 

NSC to advise and assist you in discharging that constitutional responsibility.

The Office of Legal Counsel of the Department of Justice has reviewed the 

documents for which assertion of executive privilege has been recommended and 

is satisfied that they fall within the scope of executive privilege. I concur in that 

assessment. The Supreme Court has confirmed that the Constitution gives the 

President the authority to assert executive privilege to protect the confidentiality 

of diplomatic communications, Presidential communications, and White House deliberative communications. 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 privilege is fundamental to the operation of Government and

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Opinions o f the Attorney General in Volume 20

inextricably rooted in the separation of powers under the Constitution.” United

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

More specifically, the Supreme Court has acknowledged the settled application 

of executive privilege with respect to “ diplomatic secrets,” such as the diplomatic 

communications with the leaders of Haiti that are subject to the Committee’s subpoena, stating that “ [a]s to th[is] area[] of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.” Id. at 710; see

also id. at 706. “ [I]t is elementary that the successful conduct of international 

diplomacy . . . require[s] both confidentiality and secrecy. . . . [I]t is the constitutional duty of the Executive . . . to protect the confidentiality necessary to 

carry out its responsibilities in the field[] of international relations . . . .” New

York Times Co. v. United States, 403 U.S. 713, 728-30 (1971) (Stewart, J., concurring).

As Assistant Attorney General William H. Rehnquist concluded almost thirty 

years ago, “ the President has the power to withhold from [Congress] information 

in the field of foreign relations or national security if in his judgment disclosure 

would be incompatible with the public interest.” Memorandum from John R. Stevenson, Legal Adviser, Department of State, and William H. Rehnquist, Assistant 

Attorney General, Office of Legal Counsel, Re: The President’s Executive Privilege to Withhold Foreign Policy and National Security Information at 7 (Dec. 

8, 1969). History is replete with examples of the Executive’s refusal to produce 

to Congress diplomatic communications and related documents because of the 

prejudicial impact such disclosure could have on the President’s ability to conduct 

foreign relations. See Memorandum from Theodore B. Olson, Assistant Attorney 

General, Office of Legal Counsel, 6 Op. O.L.C. 751 (1982) (compiling historical 

examples).

It is equally well established that executive privilege applies to confidential 

communications to and from the President or Vice President and to White House 

and NSC deliberative communications. 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.” 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

A ctivities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). And those 

functions must be in furtherance of legitimate legislative responsibilities of Congress. See M cGrain v. Daugherty, 273 U.S. 135, 160 (1927) (Congress has over6
Assertion o f Executive Privilege fo r D ocum ents Concerning Conduct o f Foreign Affairs with Respect

to Haiti

sight authority ‘ ‘to enable it efficiently to exercise a legislative function belonging 

to it under the Constitution” ).

“ Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the 

exclusive province of one of the other branches of the Government.” Barenblatt

v. United States, 360 U.S. 109, 111-12 (1959). The Committee has sought to 

justify its demand based on its need for information on “ Administration policy 

toward human rights abuses in Haiti” and “ the Administration’s knowledge of 

death squad activities in Haiti over the last two years.” Letter for Jack Quinn, 

Counsel to the President, from Benjamin A. Gilman, Chairman, Committee on 

International Relations at 2 (Sept. 19, 1996). However, the conduct of foreign 

affairs is an exclusive prerogative of the executive branch. See, e.g.. United States

v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) (the President is “ the 

sole organ of the federal government in the field of international relations” ); Chicago and Southern Air Lines, Inc. v. Waterman 5.5. Corp., 333 U.S. 103, 111 

(1948) (the President is “ the Nation’s organ for foreign affairs” ); 5 Paul L. Ford, 

The Writings o f Thomas Jefferson 161 (New York, The Knickerbocker Press 1895) 

(“ [t]he transaction of business with foreign nations is executive altogether” ). 

Thus, there is a substantial question of the executive branch’s conduct of foreign 

affairs or its deliberations relating thereto.

Although the question of Congress’s oversight authority in this context must 

be viewed as unresolved as a matter of law, it is clear that congressional needs 

for information in this context will weigh substantially less in the constitutional 

balancing than a specific need in connection with the considerations of legislation. 

Based on the Office of Legal Counsel’s review of the documents for which assertion of executive privilege has been requested, and 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, I do not believe that access to these documents would be held by the courts to be “ demonstrably critical to the responsible 

fulfillment of the Committee’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 Committee’s subpoena.

Sincerely,

JANET RENO 

Attorney General

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