3

Claims of executive privilege seem to be a cautionary claim - cautioning someone to not disclose inner workings of the executive branch. It is a preventive claim - preventing someone from releasing those details.

What is the remedy if someone violates executive privilege? Is there any statue criminalizing the violation of executive privilege?

On a related note, if the damage is done - something really crucial to the executive branch is revealed - can there be any remedy to that or is the genie out of the bottle? For example, could the information be used in a suit against the USA or will the presiding judge throw out evidence obtained through the violation of executive privilege?

2

A privilege is a right to prevent evidence from being used in a proceeding (even if it has been disclosed publicly by someone who does not "own" the privilege, e.g. the President in whose administration the communication that is privileged occurred, in the case of "Executive Privilege"), even when it is subpoenaed. It is enforced by a motion or request in a proceeding to prevent the evidence from being considered.

So, if information protected by Executive Privilege is leaked without the permission of the President, it still can't be used in court against the United States or the President.

Voluntary disclosure by someone who "owns" the privilege (e.g. in a tweet or public speech or legal document filed with a court or Congress) waives a privilege, as does voluntarily placing a privileged matter at issue on the part of the person owning the privilege. For example, if you assert a defense of reliance on the advice of counsel, you voluntarily waive the right to assert attorney-client privilege with regard to what you were told by your attorney.

The existence and scope of a privilege is normally determined by the tribunal before which the proceeding is taking place, subject to any appeals available from the tribunal (if any).

There is no law criminalizing the disclosure of privileged information (including information subject to the common law executive privilege) per se.

A privilege is separate and distinct from a duty to refrain from disclosing information, although the two often overlap.

For example, there is both (1) an attorney-client privilege that prevents confidential communications between an attorney and client about legal matters from being disclosed in a proceeding without the client's permission (in federal court this arises via court rule, in Colorado where I mostly practice, it is a matter of statute), and (2) a duty of an attorney to keep client information confidential except in special circumstances that arises from Rule of Professional Conduct 1.6.

There are matters that a lawyer has a duty to keep confidential in the absence of a valid subpoena, even if the information is not protected by the attorney-client privilege and/or has been publicly disclosed by someone other than the client. A lawyer could lose his license for violating Rule of Professional Conduct 1.6 (every state uses the same numbering system for such violations), and could be sued for violating the privacy rights of a client in a way that causes harm to the client, but it is not usually a crime to disclose such information (unless it is a trade secret or a national security secret).

The law governing what punishments an individual faces for disclosing information revealed in secret by the President to an individual is separate and distinct from the scope of the Executive Privilege and is governed by different laws. Often it is governed by case by case non-disclosure agreements entered into contractually by the person who is privy to the secrets (which usually have non-criminal remedies like lawsuits for money damages and injunctive relief). The consequences also depend on the nature of the material disclosed (national security matters and trade secrets are governed by different laws than other secrets) and the person to whom it is disclosed (a disclosure to a Taliban leader with whom the U.S. has an authorization for use of military force against is espionage, which is different than a disclosure to a member of Congress which is merely a "leak").

Typically, punishments for violating a duty of confidentiality are imposed in a collateral case to one in which someone proposed to use information protected by a privilege.

0

Executive Privlege is the President stating that material sought by the judicial or legilsative branches are personal communications about policy decisions or matters under confidence or advisory (i.e. Attorney Client Privilege or an Advisor laying out numerous options, some of which are legally questionable, but are not acted upon).

Typically, Executive Privilege will block all executive agencies (most of the Federal Agencies of government are executive) and employees from speaking on the matter or releasing requested documents claimed Privileged. If an employee speaks on the matter to congress, the president's recourse is to fire them (since executive employees ultimately serve at the pleasure of the President and this behavior will likely displease him).

If the employee has left the job and then speaks, it depends on the nature of the breech (attorneys can be disbarred for violating privilege with their clients) and whether any non-disclosure agreements were signed (which were probably signed as part of the hiring process well before they became privy to privileged info and for this reason). NDAs don't prevent speaking, but will count as a civil violation if one speaks in a manner that violates the terms of the NDA.

Similarly, the use of the speech as evidence in any proceeding depends on the nature of the proceeding and how the material is obtained.

However once out, you cannot "unring the bell" and people are going to know what the guy said.

4
  • So in essence - executive privilege is unenforceable if, in large part, the only jeopardy to an executive branch employee is the loss of employment? Jan 27 '20 at 16:03
  • @NonPartisanObservor - Plus matters of NDAs they have signed. It's mostly a check on legislature as the courts have to determine if the EP is valid before it's required to be turned over.
    – hszmv
    Jan 27 '20 at 16:34
  • 1
    @NonPartisanObservor: Just because it's not criminally enforceable does not mean it's unenforceable. A lot of the civil charges that can attach can be quite costly to defend against and you're not going to get a state provided attorney.
    – hszmv
    Jan 27 '20 at 16:37
  • Just because it isn't criminally enforceable (if it is not in a particular case) doesn't mean it doesn't have legal effect. If it is privileged, it can't be considered in a court case and arguably not in an impeachment trial either, even if the individual disclosing it isn't punished.
    – ohwilleke
    Jan 27 '20 at 22:19

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.