            Propriety of Asserting a Governmental Privilege
                     in Response to a Court Order

B oth the com m on law governm ental p n v ileg e and the constitutionally based executive privilege may
   be asserted to p rotect certain docum ents reflecting the deliberation of close presidential advisers
   from d isclosure in response to a court order.


                                                                                October 13, 1982

 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

   You have requested the advice of the Office of Legal Counsel (OLC) con­
cerning the propriety of asserting a governmental privilege in response to a court
order that purports to require the production of certain White House staff
documents and presidential Military Manpower Task Force documents. In re­
sponse to your request, OLC has reviewed the relevant documents and has
carefully evaluated your claim o f governmental privilege. Based upon this
review, OLC has concluded, for reasons set forth more fully below, that the
documents identified are properly subject to a claim of governmental privilege
and that the privilege may properly be asserted with respect to those documents.
   The court order in question was issued in a case involving a prosecution for
failure to register for the draft. U nited States v. Wayte, Crim. No. 82-630 (C.D.
Cal.). In that case, defendant has alleged that his indictment was based upon
impermissible selective prosecution. After ruling that defendant had established
a prim a fa cie case of selective prosecution, District Court Judge Terry J. Hatter,
Jr., ordered a full hearing on that issue and required the government to produce
certain documents and witnesses. In an order issued from the bench, the court
ordered production of documents from the files of the White House, the Presi­
dent’s Military Manpower Task Force (MMTF), the Department of Defense,
Selective Service, and the Department of Justice. As initially articulated on
October 1, 1982, the court order required production of “general policy state­
ments dealing with the prosecution of nonregistrants, including transcripts of
meetings at which such policy was discussed.” A second statement by the court,
which purported to be a clarification of the initial order, seems to require the
production of “everything dealing with the active and passive [nonregistration]
enforcement systems.” In response to the court’s order, members of your staff
assembled the relevant documents from the files of both the MMTF and the White
House itself. Upon review of these documents, the White House has determined

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that a number of the documents are within the scope of the deliberative process
privilege. You have requested OLC to review that privilege claim.
   The documents that have be§n assembled and for which a claim of privilege is
under consideration generally reflect the deliberations of close presidential
advisers concerning the policies to be implemented with respect to selective
service registration. Most of the documents relate to the MMTF, a special
advisory group established by the President to make recommendations con­
cerning the manpower needs of the Nation’s military forces, including the
possible need for and implementation of a selective service registration system.*
These MMTF documents include reports, agendas, and verbatim transcripts of
various meetings and deliberations of the MMTF. The MMTF documents also
include several drafts and a final copy of the report of the MMTF to the President
which sets forth a number of recommendations concerning military manpower
policy. In addition to the MMTF documents, the documents include memoranda
and notes that reflect pre-decisional discussions among presidential advisers
concerning various aspects of selective service policy.
   After a careful review of these documents, we have concluded that they are
protected by the common-law governmental privilege and the constitutionally
based executive privilege for documents reflecting the deliberative process.
There is no doubt that the Executive enjoys a privilege for intra-agency memo­
randa and documents that reflect the deliberative decisionmaking process. United
States v. Nixon, 418 U.S. 683 (1974); Kaiser Aluminum & Chemical Corp. v.
United States, J57 F. Supp. 939 (Ct. Cl. 1958) (Reed, J.). The Supreme Court has
stated that the “privilege is fundamental to the operation of Government and
inextricably rooted in the separation of powers under the Constitution.” United
States v. Nixon, 418 U.S. at 708 (footnote omitted). There are two principal
grounds for this deliberative process privilege. The first ground is
          the valid need for protection of communications between high
          Government officials and those who advise and assist them in the
          performance of their manifold duties; the importance of this
          confidentiality is too plain to require further discussion. Human
          experience teaches that those who expect public dissemination of
          their remarks may well temper candor with a concern for ap­
          pearances and for their own interests to the detriment of the
          decision-making process.
United States v. Nixon, 418 U.S. at 705 (footnote omitted). The second ground is
that pre-decisional analyses or memoranda do not necessarily reflect the basis for
the ultimate decision of the agency. As one court recently stated, “[d]ocuments
which are protected by the privilege are those which would inaccurately reflect or
prematurely disclose the views of the agency, suggesting as agency position that
which is as yet only a personal position.” Coastal States Gas Corp. v. DOE, 617
F.2d 854, 866 (D.C. Cir. 1980).
♦The MMTF was chaired by the Secretary of Defense and included, among others, the Counsellor to the President,
the Chairman of the Council of Economic Advisers, and the Director of OMB

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   The attached documents seem clearly to fall within the deliberative process
privilege outlined above. All of the documents relate to pre-decisional discus­
sions concerning possible implementation of selective service registration. The
documents reflect consideration of a wide range of alternatives and possible
policy directions. Even the M MTF’s final report to the President is simply a
recommendation to the President concerning proposed military manpower pol­
icy; it is not a final decision itself. The policies that underlie the deliberative
process privilege would be impaired by release of these documents. Frank and
open discussion would certainly be inhibited if presidential advisers knew that
transcripts or other descriptions o f their deliberative meetings would be released
to the public. Moreover, none of the specified documents reflect the final
decisions made by the Executive Branch on any of the issues discussed therein.
For these reasons, we have concluded that these documents are within the scope
of the deliberative process privilege.
   In evaluating the possible release of privileged documents for use in a court
proceeding, however, it is necessary to consider not only the basis for the
privilege, but also the need for the documents in the court proceeding. See United
States v. N ixon, 418 U.S. 683 (1974). In this case, based upon our review of the
specified documents, we have concluded that the documents are of little rele­
vance to the court’s consideration of defendant’s selective prosecution claim. For
the most part, these documents reflect general considerations concerning se­
lective service policy. To the extent that they touch upon selective service
prosecution at all, the documents are general and descriptive; they set forth no
government policies concerning how selective service violators should be pros­
ecuted. When the limited relevance of these documents is weighed against the
clear applicability of the deliberative process privilege, the balance tips heavily
in favor of nondisclosure.
   In conclusion, it is the opinion of this Office that the specified documents are
well within the scope of the deliberative process privilege and that that privilege
may be asserted in the Government’s response to the court order in the instant
case.

                                             T heodore    B.   O   lson

                                           Assistant Attorney General
                                            Office c f Legal Counsel




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