PUNO’S TAKE ON EXECUTIVE PRIVILEGE

This post is the continuation of summarizing Chief Justice Reynato Puno’s dissenting opinion on Neri v. Senate. Previously, he discussed executive privilege, its history, application in US and Philippine jurisprudence, and examined US v. Nixon. You may want to read it: The circle is complete: historical overview of executive privilege.

On Presidential Communications Privilege

Puno is concentrating on presidential communications privilege because this is the primary reason why Neri invoked executive privilege. His examination of US v. Nixon was essential in his explanation about this privilege.

In US v. Nixon, the US Supreme Court recognized the presidential communications privilege. This decision cited two reasons for the privilege.

1. Public interest in candor or candid opinions in presidential decision-making. “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.” The Court posited two reasons why this is necessary:

a. Common sense and experience. If the decision-making process is open, participants would be constrained to watch their language and temper candor, when candor is what is needed in decision making.

b. The supremacy of each branch in its own sphere of duties. “Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II (presidential) powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.”

2. Separation of powers. While the US Constitution divides power among three co-equal branches and grants independence to each, US v. Nixon holds that this separation is not intended to be exercised with absolute independence. While recognizing the presidential communications privilege based on separation of powers, the US Supreme Court also considered the effect of the privilege on the judiciary’s effective discharge of its duties.

According to Justice Puno, US v. Nixon has clearly defined the scope of presidential communications privilege.

It covers communications in the “performance of the President’s responsibilities” “of his office” and made “in the process of shaping policies and making decisions.”

Nixon v. Sirica asserts that presidential communications are presumed to be privileged as stated in In re Subpoena for Nixon [487 F.2d 700 at 717]. Puno noted that this presumption came at a time when there was a general disfavor of government privileges. In that In re case, the Court explained that in balancing the need to disfavor privileges and the need to favor the privacy of presidential deliberations, it sided in favor of the privilege, citing the need to respect the President, its office, and the duties of the office. (See above discussion re: US v. Nixon recognizing presidential communications privilege.)

Overcoming the Presumption of Presidential Communications as Privileged

Now to overcome that presumption, US v. Nixon asserts that there must be demonstrable specific need. Two standards must be met to overcome the presumption.

1. Evidentiary standard of need. The evidentiary requirements are relevance, admissibility, and specificity. The Supreme Court in US v. Nixon used this standard whether the subpoena overcomes the presumption of executive privilege. In addition, the In re Sealed Case [In re Sealed Case (Espy), 121 F3d 729 at 754], the DC Court of Appeals asserted that before the privilege is overcome, it must be shown that “evidence is not available with due diligence elsewhere” or that the evidence “is particularly and apparently useful.”

2. Function impairment test. Used in making the balance, the Court weighs how the disclosure would impair the President’s ability to perform his duties more than nondisclosure would impair the other’s branch ability to do its job.

In US v. Nixon, the Court assessed how significant would be the adverse effect of disclosure in the performance of the President’s functions. The Court ruled that “the interest in confidentiality of Presidential communications is not significantly diminished by production of the subject tape recordings for in camera inspection, with all the protection that a district court will be obliged to provide in infrequent occasions of a criminal proceeding.”

Then, it assessed the bad effects of nondisclosure on the judiciary’s performance of its duties. The Court ruled that by withholding information, the judiciary cannot perform its duty to render justice in criminal cases.

Checking on the nature or content of the communication that was withheld, the Court found that Nixon’s claim “depended solely on the broad, undifferentiated claim of public interest in the confidentiality” of his conversations. There was no claim to protect diplomatic, military, and state secrets.

The Court also held that while executive privilege is necessary, in Nixon’s case it impedes the search for truth and “must not therefore be lightly created or expansively construed.”

After the discussion on overcoming this presumption, Justice Puno began tackling the in camera (within chambers) determination of information to be disclosed, again referring to US v. Nixon and related cases, specifically on US v. Mitchell. The in camera inspection is necessary to excise parts of the material because these are validly covered by executive privilege.

Given the previous discussion, Justice Puno now begins to discuss how to resolve Neri’s petition.