Faculty Blog, Friedman

Executive Privilege and the Census

The truth may be out there, but President Donald Trump is doing his level best to prevent its discovery. His latest effort is the assertion of executive privilege in the face of congressional inquiries into the addition of a citizenship question to the 2020 census. The move is not likely to go unchallenged—and, in this case at least, the president’s lawyers may have their work cut out for them.

The U.S. Constitution nowhere provides for executive privilege. It seems clear that the framers understood the nature of such privileges—Article I explicitly protects communications between and among members of Congress. But the framers did not see fit to memorialize a similar protection for intra-branch presidential communications.

Of course, as a purely historical matter, presidents have relied upon confidential communications with formal and informal advisers since the administration of George Washington. And, as a practical matter, an executive privilege that allows the president access to honest advice and counsel may be necessary for the president to faithfully execute the laws, as Article II of the Constitution demands.

Indeed, the U.S. Supreme Court accepted this functionalist argument in United States v. Nixon. That case famously concerned President Richard Nixon’s effort to prevent the disclosure of information about his Oval Office discussions in connection with the prosecution of his former Attorney General, John Mitchell.

As an initial matter, the Supreme Court in Nixon rejected the claim of an absolute privilege, but recognized that presidents may have a need for high-level communications to remain confidential. The court accordingly held that, absent a need “to protect military, diplomatic, or sensitive national security secrets,” allegedly confidential materials may be examined to determine whether the privilege should prevail against other significant interests.

The countervailing interest in Nixon was the integrity of criminal prosecutions in the federal courts. The court saw this as a particularly significant interest and concluded that the legitimate needs of the judicial process outweighed the president’s desire for confidentiality: it is fundamental to our criminal justice system that all relevant facts necessary to adjudicate an individual’s guilt or innocence be made available.

The accuracy of criminal justice determinations is important to individual defendants, of course, but also to the rest of us: there is no small comfort in knowing that, were we in the same situation as Mitchell, important and potentially exculpatory information would not be withheld from a decision-maker’s consideration.

Using Nixon as a guide, a court, in resolving a challenge to Trump’s invocation of executive privilege in the matter of the 2020 census, would have to assess the weight of the congressional interest in the information sought. The potential manipulation of the census for partisan gain is not an issue that concerns the interests of one particular citizen in the way that a criminal charge does. But it is an issue, like public confidence in the criminal justice system, which may affect each of us.

The census, after all, is not just another legislative policy—it is a constitutional mandate. Article I instructs Congress to ensure that an actual enumeration occurs every ten years. That Congress reasonably delegated the task of counting the population to the Commerce Department’s Census Bureau—that is, to an arm of the executive branch—does not alter its constitutional character.

While there may be some question as to how much discretion the executive has, consistent with congressional guidelines, to influence the execution of the census, there should be no doubt that the census is a critical feature of our constitutional order: the makeup of the House of Representatives depends upon the accuracy of the decennial enumeration. Nor should there be any doubt that Congress has the authority to oversee and investigate the execution of a constitutional command for which it is ultimately accountable.

House members may have their own reasons for seeking information from Attorney General William Bar and Commerce Secretary Wilbur Ross about the 2020 census. But here, as noted by multiple courts, there is evidence that the administration might have added the citizenship question to the census purely for partisan purposes. Given that an accurate count is no less an important constitutional obligation than ensuring the accuracy of criminal justice proceedings, Congress’s failure to investigate the evidence and the allegations regarding the census rightly should be regarded as legislative malpractice. The case against executive privilege is a strong one.

Lawrence Friedman teaches constitutional law and national security law at New England Law | Boston and is the author, most recently, of Modern Constitutional Law.

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