Elena Kagan and Executive Privilege

Elena Kagan, President Obama's nominee to the Supreme Court, has served in the executive branch. To what extent are documents from her service subject to executive privilege. At the Center for American Progress, Ian Millhiser explains two kinds of executive privilege. The strong form, presidential communications privilege, applies to communications made directly to the president or the president's immediate staff. Millhiser explains the other form:

The weaker form of executive privilege is known as the “deliberative process privilege,” which applies to discussions among executive branch officials that are part of the government’s decision-making process. This privilege can apply to executive branch officials outside of the president’s inner circle, but it is both more limited in scope and easier to overcome.

As Judge Patricia Wald explained in the seminal Espy case, “[t]he deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the governments deliberations.”

General Kagan served as an attorney and policy advisor on President Clinton’s White House staff, and a substantial amount of the work she produced during that service will therefore be subject to the stronger presidential communications privilege. Documents related to her White House service are therefore unlike documents produced by Chief Justice John Roberts or Justice Samuel Alito during their time at the Department of Justice—which, at best, could only be subject to the weaker deliberative process privilege. (The documents Roberts produced during his tenure in the Office of White House Counsel, of course, may be subject to the presidential communications privilege.)