           Assertion of Constitutionally Based Privilege Over
                    Reagan Administration Records
It is legally permissible for President Bush to assert constitutionally based privilege in concurrence with
    former President Reagan’s assertion of constitutionally based privilege over certain Reagan Admin-
    istration documents that are otherwise required to be released by the National Archives and Records
    Administration under the Presidential Records Act.

                                                                                       January 12, 2004

                  LETTER OPINION FOR THE COUNSEL TO THE PRESIDENT

   You have requested my advice as to whether it is legally permissible for the
President to assert constitutionally based privilege with respect to certain Reagan
Administration documents that are otherwise required to be released by the
National Archives and Records Administration (“NARA”) under the Presidential
Records Act (“PRA”), 44 U.S.C. §§ 2201–2207 (2000). Former President Reagan
has asserted constitutionally based privilege with respect to eleven documents.
Under the applicable executive order, there is a strong presumption that the
incumbent President will concur in the assertion of constitutionally based privilege
by a former President. See Exec. Order No. 13233, § 4, 3 C.F.R. 815, 817 (2002)
(“Absent compelling circumstances, the incumbent President will concur in the
privilege decision of the former President”). Thus, the specific legal question
presented to me is whether it would be legally permissible for the President to
assert constitutionally based privilege in concurrence with former President
Reagan’s assertion.
   The documents subject to former President Reagan’s assertion are all internal
White House deliberative documents either addressed to the President or other
senior White House officials or recording deliberations involving the President or
other senior White House officials, except for one deliberative memorandum from
the Attorney General to the President. They all were prepared in connection with
presidential decisionmaking. The documents fall squarely within the scope of the
presidential communications privilege. See generally United States v. Nixon, 418
U.S. 683, 705–13 (1974); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 446–55
(1977). 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 alterna-
        tives in the process of shaping policies and making decisions and to
        do so in a way many would be unwilling to express except privately.
        These are the considerations justifying a presumptive privilege for
        Presidential communications. The privilege is fundamental to the




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                 Opinions of the Office of Legal Counsel in Volume 28


      operation of Government and inextricably rooted in the separation of
      powers under the Constitution.

United States v. Nixon, 418 U.S. at 708. The presidential communications privi-
lege is not limited to advice and other communications made directly to the
President. The privilege also applies to other communications made in the course
of presidential decisionmaking, such as deliberative comments made within the
White House or communicated to White House staff in connection with the
preparation of advice to the President. The Supreme Court has recognized that the
privilege covers “communications between high Government officials and those
who advise and assist them in the performance of their manifold duties.” Id. at
705. See also In re Sealed Case, 121 F.3d 729, 757 (D.C. Cir. 1997) (the privilege
“extends to cover communications which do not themselves directly engage the
President, provided the communications are either authored or received in
response to a solicitation by presidential advisers in the course of gathering
information and preparing recommendations on official matters for presentation to
the President”). The Supreme Court has stated that “the importance of this
confidentiality is too plain to require further discussion.” United States v. Nixon,
418 U.S. at 705.
    In addition to being subject to the presidential communications privilege, these
deliberative and predecisional documents are also subject to the government-wide
deliberative process component of the President’s constitutionally based privileg-
es. See generally Confidentiality of the Attorney General’s Communications in
Counseling the President, 6 Op. O.L.C. 481, 484–90 (1982); Congressional
Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 154–
57 (1989). Counsel for former President Reagan also relied on the attorney-client
privilege and the attorney work-product doctrine in support of the former Presi-
dent’s privilege assertion. See Letter for Gary M. Stern, General Counsel, NARA,
from John A. Mintz at 2 (Jan. 8, 2004). There is no need to consider the applicabil-
ity of those privileges in light of the applicability of the presidential communica-
tions and deliberative process privileges.
    Finally, the fact that these documents are from a prior presidential administra-
tion and date from the 1980s does not preclude the assertion of privilege. The
Supreme Court has held that “the privilege survives the individual President’s
tenure.” Nixon v. Adm’r, 433 U.S. at 449 (quoting Solicitor General’s Brief at 33).
The Court expressly adopted the Solicitor General’s rationale:

      This Court held in United States v. Nixon . . . that the privilege is
      necessary to provide the confidentiality required for the President’s
      conduct of office. Unless he can give his advisers some assurance of
      confidentiality, a President could not expect to receive the full and
      frank submissions of facts and opinions upon which effective dis-
      charge of his duties depends. The confidentiality necessary to this




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               Assertion of Privilege Over Reagan Administration Records


       exchange cannot be measured by the few months or years between
       the submission of the information and the end of the President’s ten-
       ure; the privilege is not for the benefit of the President as an individ-
       ual, but for the benefit of the Republic.

Id. at 448–49 (quoting Solicitor General’s Brief at 33) (emphasis added).
    The documents that are subject to the privilege claim are not being sought by a
coordinate branch of the government. Therefore, I do not believe there is a need to
consider whether any asserted justification for disclosure might outweigh the
President’s constitutionally based interest in the confidentiality of deliberations
relating to presidential decisions. However, even if a court were to conclude that
assertions of constitutionally based privileges in connection with NARA releases
under the PRA are subject to a balancing test, I believe that the court would find
that the confidentiality interests underlying the assertion of privilege with respect
to these candid, highly deliberative presidential decisionmaking documents
outweigh Congress’s generalized interests, in enacting the PRA, in providing for
public release of presidential records.
    In conclusion, it is my opinion that it is legally permissible for the President to
assert constitutionally based privilege in these circumstances.

                                              JACK L. GOLDSMITH III
                                              Assistant Attorney General
                                               Office of Legal Counsel




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