The limits of executive privilege

Posted at 03/28/2008 5:33 PM

By JUSTICE ANTONIO CARPIO 

Executive privilege can never be used to hide a crime or wrongdoing

 

Executive privilege is the implied constitutional power of the President to withhold information requested by other branches of the government.  The Constitution does not expressly grant this power to the President but courts have long recognized implied Presidential powers if “necessary and proper” in carrying out powers and functions expressly granted to the Executive under the Constitution. 
 
As Commander-in-Chief of the Armed Forces and as Chief Executive, the President is ultimately responsible for military and national security matters affecting the nation. In the discharge of this responsibility, the President may find it necessary to withhold sensitive military and national security secrets from the Legislature or the public. 
 
As the official in control of the nation’s foreign service by virtue of the President’s control of all executive departments, bureaus and offices, the President is the chief implementer of the foreign policy relations of the State.  The President’s role as chief implementer of the State’s foreign policy is reinforced by the President’s constitutional power to negotiate and enter into treaties and international agreements.
 
In the discharge of this responsibility, the President may find it necessary to refuse disclosure of sensitive diplomatic secrets to the Legislature or the public.  Traditionally, states have conducted diplomacy with considerable secrecy.  There is every expectation that a state will not imprudently reveal secrets that its allies have shared with it. 
 
Cabinet discussions
 
There is also the need to protect the confidentiality of the internal deliberations of the President with his Cabinet and advisers. To encourage candid discussions and thorough exchange of views, the President’s communications with his Cabinet and advisers need to be shielded from the glare of publicity.  Otherwise, the Cabinet and other presidential advisers may be reluctant to discuss freely with the President policy issues and executive matters knowing that their discussions will be publicly disclosed, thus depriving the President of candid advice. 
 
Executive privilege, however, is not absolute. The interest of protecting military, national security and diplomatic secrets, as well as Presidential communications, must be weighed against other constitutionally recognized interests.  
 
There is the declared state policy of full public disclosure of all transactions involving public interest, the right of the people to information on matters of public concern, the accountability of public officers, the power of legislative inquiry, and the judicial power to secure testimonial and documentary evidence in deciding cases.
 
The balancing of interests – between executive privilege on one hand and the other competing constitutionally recognized interests on the other hand - is a function of the courts.  The courts will have to decide the issue based on the factual circumstances of each case.  This is how conflicts on executive privilege between the Executive and the Legislature, and between the Executive and the Judiciary, have been decided by the courts. 
 
The Judiciary, however, will consider executive privilege only if the issues cannot be resolved on some other legal grounds. In conflicts between the Executive and the Legislature involving executive privilege, the Judiciary encourages negotiation between the Executive and Legislature as the preferred route of conflict resolution. Only if judicial resolution is unavoidable will courts resolve such disputes between the Executive and Legislature.
 
Past presidents covered
 
Information covered by executive privilege remains confidential even after the expiry of the terms of office of the President, Cabinet members and presidential advisers. Thus, a former President can assert executive privilege.
 
The character of executive privilege attaches to the information and not to the person. Executive privilege is for the benefit of the State and not for the benefit of the office holder. Even death does not extinguish the confidentiality of information covered by executive privilege.
 
Executive privilege must be exercised by the President in pursuance of official powers and functions.  Executive privilege cannot be invoked to hide a crime because the President is neither empowered nor tasked to conceal a crime. On the contrary, the President has the constitutional duty to enforce criminal laws and cause the prosecution of crimes.
 
Executive privilege cannot also be used to hide private matters, like private financial transactions of the President.  Private matters are those not undertaken pursuant to the lawful powers and official functions of the Executive. 
 
However, like all citizens, the President has a constitutional right to privacy. In conducting inquiries, the Legislature must respect the right to privacy of citizens, including the President’s.
 
Specific information
 
Executive privilege must be invoked with specificity sufficient to inform the Legislature and the Judiciary that the matter claimed as privileged refers to military, national security or diplomatic secrets, or to confidential Presidential communications.
 
Executive privilege must be invoked after the question is asked by the legislative committee, not before.  A witness cannot raise hypothetical questions that the committee may ask, claim executive privilege on such questions, and on that basis refuse to appear before the legislative committee.  
 
If the legislative committee furnished in advance the questions to the witness, the witness must bring with him the letter of the President or Executive Secretary invoking executive privilege and stating the reasons for such claim. 
 
There are other categories of government information which are considered confidential but are not strictly of the same status as those falling under the President’s executive privilege. An example of such confidential information is the identity of an informer which is made confidential by contract between the government and the informer.
 
The privilege character of the information is contractual in nature. There are also laws that classify the identity of an informer as confidential. The privilege character of the information is conferred by the Legislature and not by the Executive’s implied power of executive privilege under the Constitution.
 
Bids, contracts 
 
There is also the category of government information that is confidential while the deliberative process of agency executives is on-going, but becomes public information once an agency decision or action is taken. Thus, a committee that evaluates bids of government contracts has a right to keep its deliberations and written communications confidential.  The purpose of the deliberative process privilege is to give agency executives freedom to discuss competing bids in private without outside pressure.
 
However, once they take a definite action, like deciding the best bid, their deliberations and written communications form part of government records accessible by the public.
 
Confidential information under the deliberative process privilege is different from the President’s executive privilege. Military, national security, and diplomatic secrets, as well as Presidential communications, remain confidential without time limit. The confidentiality of matters falling under the President’s executive privilege remains as long as the need to keep them confidential outweighs the need for public disclosure. 
 
Then there is the category of government information that must be kept temporarily confidential because to disclose them immediately would frustrate the enforcement of laws. In an entrapment operation of drug pushers, the identity of the undercover police agents, informers and drug suspects may not be disclosed publicly until after the operation is concluded. 
 
However, during the trial, the identity of the undercover police agents and informers must be disclosed if their testimony is introduced in evidence.
 
Romulo Neri, petitioner            
 
Petitioner categorically admits that his discussions with the President “dwelt on the impact of bribery scandal involving high Government officials.” Petitioner’s discussions with the President dealt not on simple bribery, but on scandalous bribery involving high Government officials of the Philippines.  
 
In a letter dated 29 November 2007 to the Chairs of the [Senate] Committees, petitioner’s counsel declared: His conversations with the President dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high Government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. x x x
 
Petitioner admits, and there can be no dispute about this admission, that his discussions with the President dwelt on a bribery scandal involving high Government officials of the Philippines.   
 
Executive privilege can never be used to hide a crime or wrongdoing, even if committed by high government officials.  Executive privilege applies only to protect official acts and functions of the President, never to conceal illegal acts by anyone, not even those of the President.
 
Public office is a public trust and not a shield to cover up wrongdoing. 
 
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These are excerpts from the dissenting opinion of Justice Antonio Carpio on the scope of executive privilege in the Romulo Neri vs Senate Committee on Accountability of Public Officers and Investigations, Senate Committee on Trade and Commerce, and Senate Committee on National Defense and Security.