Executive Privilege under Washington's Separation of Powers Doctrine

By Marchisio, Lee | Washington Law Review, October 2012 | Go to article overview

Executive Privilege under Washington's Separation of Powers Doctrine


Marchisio, Lee, Washington Law Review


Abstract: Since United States v. Nixon, the U.S. Supreme Court has recognized a qualified executive privilege grounded in federal separation of powers. The privilege allows the President to withhold executive branch communications when disclosure would undermine presidential decisionmaking while executing core constitutional duties. Several states have followed the Supreme Court's lead and adopted an analogous gubernatorial privilege under state constitutional separation of powers. Focusing on Washington State's well-developed separation of powers doctrine and strong populist history, this Comment argues that the Washington State Supreme Court should recognize a qualified gubernatorial privilege that also respects the state's long history of citizen oversight.

INTRODUCTION

The spirit of reciprocity and interdependence requires that if checks by one branch undermine the operation of another branch or undermine the rule of law which all branches are committed to maintain, those checks are improper and destructive exercises of the authority1

The separation of powers doctrine is deeply rooted in Washington jurisprudence.2 It protects each branch of government from encroachment into its core sphere of competence, guarding against burdensome checks on its power by the other branches.3 Nevertheless, the Washington State Supreme Court has so far avoided determining the extent to which the executive branch may shield its internal decisionmaking processes from a judicial order to disclose records for criminal proceedings, civil litigation, or public records requests.4

In United States v. Nixon,5 the U.S. Supreme Court held that the President has a qualified privilege to withhold executive communications.6 The privilege presumptively applies whenever the President formally asserts it in response to a specific request for information.7 A requestor must then demonstrate a particularized need for the communications at issue.8 If the requestor can demonstrate sufficient need, then a court will review the communications in camera and engage in a balancing test to determine whether the requestor's particular need outweighs the public interest in maintaining the integrity of the President's decisionmaking process.9 In Nixon, the Court held that the need for evidence in a criminal proceeding was sufficient to compel in camera inspection and the subsequent release of admissible and relevant recorded conversations between the President and his advisors.10

After Nixon, states have recognized varying degrees of analogous gubernatorial privilege grounded in common law" or state constitutional separation of powers.12 Some states provide a deliberative process exemption13 that protects communications only insofar as they pertain to pre-decisional opinions.14 Under this exemption, factual material divorced from advisor opinion is generally not protected.15 Furthermore, once the governor makes a final decision on the relevant issue, the deliberative process exemption ceases to protect even advisor opinions.16 Other states apply a more robust executive privilege doctrine closely analogous to that applied in Nixon, which exempts both pre- and postdecisional gubernatorial communications. These states protect both fact statements and advisor opinions from compelled disclosure.17 They also protect documents even after a final decision has been made.18

The Washington Public Records Act (PRA)19 guarantees citizen access to public records of state and local governmental bodies, including the governor's office as a state agency.20 The PRA includes a deliberative process exemption, 1 which the Washington State Supreme Court strictly limits to pre-decisional opinions.22 The Court refuses to protect communicated opinions once a final decision has been reached.23 Furthermore, courts reviewing disclosure requests start with a strong presumption in favor of disclosure and apply the statutory exemption narrowly.24 This framework is consistent with Washington's populist constitutional history. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Executive Privilege under Washington's Separation of Powers Doctrine
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.