Privileges Protect OLC Memos Supporting Obama’s Recess Appointment of CFPB Director Richard Cordray 1

Citing the deliberative process privilege, SDNY Judge Rakoff thwarted the New  York Times’ attempt to obtain a copy of Department of Justice Office of Legal Counsel’s

President Obama appoints Richard Cordray as the first CFPB Director

President Obama appoints Richard Cordray as the first CFPB Director

legal memoranda allegedly supporting President Obama’s January 2012 recess appointment of Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB).  In its opinion, available at this link, Judge Rakoff ruled that the Times failed to prove that White House Press Secretary Jay Carney’s remarks or the temporal connection of the Cordray appointment (January 4) and the OLC memo (January 6) constituted presidential approval sufficient to warrant waiver of the deliberative process privilege.  New York Times Co. v. U.S. Dep’t of Justice, 2013 WL 174222 (S.D.N.Y. Jan. 7, 2013).

Recess Appointment

On January 4, 2012, while the U.S. Senate was in recess, President Obama appointed Richard Cordray as CFPB Director.  The Constitution permits recess appointments, but presidents traditionally do not make appointments during a recess lasting less than 10 days.  During the Senate’s December-January winter break, it held so-called “pro forma” sessions to prevent the recess from officially lasting more than three days.  The Cordray appointment created legal and political controversy because it came during a period when the Senate was not formally in recess.

The OLC sought to quell the controversy by publishing a legal memorandum authored by Virginia Seitz, OLC Ass’t Attorney General.  In the memo, available here, Seitz argued that the Senate’s pro forma sessions could not prevent the President’s constitutional authority to make appointments during a Senate recess.  The memo cited two prior OLC memos, authored by Jack L. Goldsmith and John P. Elwood, as precedent.

NYT FOIA Request

The Times filed suit to enforce its FOIA request for access to the Goldsmith and Elwood memoranda.  The DoJ countered that Exemption 5 protected the memoranda from disclosure because the deliberative process privilege, attorney-client privilege, and presidential communications privilege covered their contents.  The Times conceded that deliberative process privilege covered the memoranda but argued that the DoJ had waived the privilege.

Privilege Issues

The Court correctly stated that the government may waive the deliberative process privilege in two situations.  First, the so-called “working law” waiver applies when the governmental document is more properly categorized as stating or interpreting the agency’s law and policies rather than as a document containing predecisional agency deliberations.  Second, the adoption or incorporation waiver provides that a document containing predecisional deliberations loses its privileged status when the governmental agency adopts its contents as policy.

The Times argued that President Obama adopted the OLC memo–thus waiving the privilege–when he made the January 4, 2012 Cordray recess appointment.  For proof, the Times argued that the chronology between the OLC memo and the appointment proved the president’s adoption.  President Obama made the January 4 recess appointment following meetings with OLC attorneys.  Then, on January 6, 2012, the OLC sent the White House the Seitz memorandum memorializing its verbal recommendations.

The Times also argued that White House Press Secretary Jay Carney’s comments in his January 12, 2012 press briefing proved the President’s adoption.   A reporter questioned whether the President made the recess appointment without OLC approval because the appointment was made on January 4, 2012 and the Seitz memo was finalized on January 6, 2012.  In response, Mr. Carney stated that the President made the decision following receipt of a verbal opinion and that it was common for OLC memos memorializing verbal opinions to take some time to prepare.  This video clip from the January 12, 2012 White House Press Briefing shows Mr. Carney’s remarks regarding the OLC memo.

Ruling

The Court ruled that chronology alone did not prove that the president adopted the reasoning of the Seitz memo–and certainly not the reasoning set forth in the Goldsmith and Elwood memoranda. Moreover, the Court noted that Mr. Carney’s remarks did not show that the President adopted the reasoning of the Goldsmith and Elwood memoranda.  To show adoption waiver of the deliberative process privilege, the party seeking the information must show that the decisionmaker–here the President–relied on the document’s analysis and conclusions.  A decisionmaker can rely on a document’s conclusions without agreeing with the underlying reasoning.  If a decisionmaker reviews an agency recommendation and makes a “yes or no” determination without providing reasoning for the decision, then a court may not infer that she adopted the agency’s reasoning.

Here, Judge Rakoff ruled that the Times produced no evidence that President Obama expressly adopted the reasoning of the Goldsmith and Elwood memoranda in making the Cordray recess appointment. And without this evidence, the deliberative process privilege remained intact to protect the memoranda from public disclosure.

Another Victory for Obama Administration

The New York Times decision, issued on January 7, 2013, marks the second deliberative process privilege victory for the Obama Administration in the span of five days.  On January 2, 2013, the Southern District of New York, in an opinion authored by Judge Colleen McMahon, ruled that the deliberative process privilege protected from FOIA disclosure legal memoranda allegedly supporting the administration’s use of drones to unilaterally kill suspected terrorists, including American citizens.  The decision, explained in an earlier PoP post, similarly held that the administration had not waived the deliberative process privilege through comments made by President Obama and Attorney General Holder.   Consequently, the Obama Administration, in a matter of days, successfully protected from public disclosure the legal bases for its drone program decision and recess appointment decision.

Evidentiary Privileges Protect DoJ Legal Memo Allegedly Supporting U.S. Targeted Killings 2

In an opinion issued on January 2, 2013, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York ruled that the Justice Department may withhold from disclosure a legal memorandum prepared for Attorney General Eric Holder that allegedly provided legal support for a U.S. program targeting terrorists, including U.S.

Staff Legal Memo to Attorney General Holder Privileged from FOIA Request

Staff Legal Memo to Attorney General Holder Privileged from FOIA Request

citizens, for assassination.  Judge McMahon held that the attorney-client and deliberative process privileges prevent disclosure even though several senior executive officials publicly commented on the strong legal authority supporting the program.  But Judge McMahon’s ruling, with citations ranging from the Federalist Papers to the Magna Charta, seriously questioned “the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle.” The New York Times Co. v. U.S. Dep’t of Justice, 2013 WL 20543 (S.D.N.Y. Jan. 2, 2013).  Here is a link to the Court’s opinion.

FOIA Requests

The case arises from FOIA requests by two New York Times reporters and the ACLU.  These requests essentially sought documents containing the legal justification for the Obama Administration’s decision that the U.S. Government may lawfully target for killing persons, including U.S. citizens, suspected of having ties to al Qaeda or other terrorists groups.

The broad requests were effectively reduced to two legal memoranda.  The first was a legal memorandum prepared for Attorney General Eric Holder by the Justice Department’s Office of Legal Counsel (OLC).  According to DoJ, the memo contained “confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country.” The second memo was from Legal Counsel to the Joint Chiefs of Staff to the National Security Advisor Legal Advisor containing legal advice regarding the effect of U.S. citizenship on targeting enemy belligerents.

Public Comments Constitute Waiver?

The Times and ACLU conceded these memoranda were privileged under the deliberative process privilege and the attorney-client privilege.  But they argued that the Government had waived these privileges due to senior executive-branch officials’ public comments on the legal basis underlying the Government’s ability to target off-the-battlefield individuals, including U.S. citizens.

The Times and ACLU cited a plethora of comments by high-level executive-branch officials, including President Obama’s comments in the Google Hangout online forum and to Jay Leno during his October 25, 2011 appearance on the Tonight Show.  In speaking with Leno, President Obama stated that U.S. citizen Anwar Al-Awlaki “was probably the most important al Qaeda threat that was out there after bin Laden was taken out, and it was important that, working with the Yemenis, we were able to remove him from the field.”

The most explicit comments, however, came from Attorney General Eric Holder during a March 5, 2012 speech he gave at the Northwestern University School of Law.  In this speech, General Holder discussed at length the legal justifications for the Government’s ability to use lethal force in a foreign country against a U.S. citizen associated with al Qaeda and actively planning to kill Americans.

Law and Order

The court correctly held that the Government waives the deliberative process privilege only when a predecisional document has been adopted as a final policy.  And the adoption of a predecisional document such as a legal memorandum occurs only where the agency expressly adopts or incorporates it as a final opinion.

The court acknowledged that the various public statements clearly reference a legal opinion that was “performed by someone for someone.”  But the court correctly observed that none of the statements specifically referenced the OLC legal memorandum.

President Obama talks with the Tonight Show's Jay Leno on October 25, 2011

President Obama talks with the Tonight Show’s Jay Leno on October 25, 2011

  The Times and ACLU had nothing more than speculation that the legal analysis referenced by Attorney General Holder and others was set forth in the OLC memorandum.  And for this reason, the court held that the Government did not waive its deliberative process privilege because it neither adopted nor incorporated by reference the OLC memorandum.  The OLC memo is privileged and not subject to the Times and ACLU’s FOIA request.

As for the Joint Chiefs of Staff legal memorandum, the court reserved judgment because the Government’s supporting affidavit contained nothing more than conclusory statements that the document was predecisional and deliberative. The court declined to uphold the privilege based on these conclusory statements but provided the Government with another opportunity to correct this proof with a supplement declaration.  A ruling on this memo awaits another day.

Judge Questions Legal Authority for U.S. Targeted Killings outside the Battlefield

Although ruling that evidentiary privileges preclude disclosure of a legal memorandum that may support the U.S. program of targeting terrorists, including U.S. citizens, for killing, Judge McMahon questioned the underlying issue—whether a legal basis actually exists for the Executive Branch to authorize unilateral killings of alleged terrorists, including U.S. citizens, outside the confines of a  battlefield.

Judge McMahon, citing James Madison and French philosopher Montesquieu, noted the Founders’ tyrannical fear of placing executive and judicial power in a single individual or institution.  The judge rejected the Hamiltonian view of due process as limited to the judicial branch, and stated that the Constitutional due process right, emanating from the Magna Charta’s “by the law of the land” provision, requires the government to give notice of a proposed action and opportunity to be heard before imposing an adverse action.

Judge McMahon, citing the hundreds of thousands of American citizen deaths during the Civil War, conceded that these due process requirements do not apply to combatants actively engaged in armed combat against the United States.  But she countered that the 2011 killings of U.S. citizens Anwar Al-Awlaki, his son, Abdulrahman Al-Awlaki, and Samir Khan, were hundreds of miles away from any battlefield.  The court observed that the activities in which these three were alleged to have engaged constituted treason, but that “the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive.”

Acknowledging that the matter is not “straightforward,” the court stated that “there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle.  The judge sympathized with the Times and the ACLU and would clearly prefer the DoJ’s legal basis for the program be publicly disclosed to “allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated.” The court lamented the “Alice-in-Wonderland” nature of her ruling, stating:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.

Court Expands Mental Process Privilege for Administrative Law Judges

The Iowa Supreme Court, deciding an issue of first impression, ruled that the mental process privilege applies to administrative law judges under investigation by the State’s Ombudsman’s office. The decision, issued in Office of Citizens’ Aide/Ombudsman v. Edwards, 2012 WL 6217027 (Iowa Dec. 14, 2012), which can be accessed here, expands the mental process privilege for administrative law judges.

Mental Process Privilege

The mental process privilege protects from compelled disclosure the deliberative or mental processes of individuals, most notably administrative law judges, acting in a quasi-judicial capacity.  The privilege’s basis arises from the idea that individuals

Iowa expands mental process privilege

making administrative adjudications must be able to render independent decisions free from external and internal pressures.  And permitting compelled disclosure of an ALJ’s thought processes behind a decision would thwart that concept.  See United States v. Morgan, 313 U.S. 409 (1941); Grant v. Shalala, 989 F.2d 1332 (CTA3 1993) (Alito, J.).  Most courts hold that the privilege is qualified, meaning that it may be overcome upon a sufficient showing of need.

Facts

Iowa maintains an Ombudsman’s Office that serves as a watchdog for administrative agencies.  The Ombudsman’s Office opened an investigation into a prisoner-disciplinary decision rendered by an ALJ for the Iowa Department of Corrections (IODC).  The Ombudsman’s Office subpoenaed the ALJ to provide deposition testimony regarding the basis for her decision, but she refused citing the mental process privilege adopted in State ex rel Miller v. DeCoster, 608 N.W.2d 785 (Iowa 2000).

Ruling

The Ombudsman’s Office argued that the mental process privilege applies only in judicial proceedings and does not extend to investigations into an ALJ’s conduct.  The Iowa Supreme Court disagreed and extended the privilege to administrative investigations so long as the ALJ was acting in a quasi-judicial capacity.  The test whether an administrator functions in a quasi-judicial capacity involves determining (1) whether the questioned act involves a proceeding that requires notice and opportunity to be heard, or (2) whether the administrator determines the parties’ rights by exercising discretion in finding facts and applying the law to those facts.

Here, the IODC ALJ met those conditions, and the Court ruled that the mental process privilege applies during an Ombudsman’s investigation into her conduct.  So, while the Ombudsman may inquire at deposition into procedural steps regarding the questionable decision, he may not inquire into the ALJ’s mental processes behind that decision.

The Court also held that the mental process privilege is qualified.  The party seeking to overcome the privilege must make a “strong showing” of bad faith or improper behavior by the ALJ.  And while the burden does not require the party to conclusively prove bad faith or improper behavior, bare allegations and conclusory statements are insufficient.

Relation to Deliberative Process Privilege and Judicial Deliberative Privilege

The mental process privilege is more akin to deliberative process privilege but is related to the judicial deliberative privilege.  The deliberative process privilege protects from compelled disclosure an administrative agency’s deliberative materials created as part of the agency’s decision-making process.  Like the mental process privilege, the deliberative process privilege is qualified and may be overcome upon a showing of need that outweighs the agency’s need for confidentiality.  See an earlier PoP post analyzing a New Mexico Supreme Court decision on the deliberative process privilege.

The judicial deliberative privilege protects a judge’s mental processes and deliberative thoughts.  This privilege, unlike the mental process privilege, is absolute, not qualified, meaning that once established it cannot be invaded regardless of the level of need.  For a review of the judicial deliberative privilege, see an earlier PoP post discussing the privilege and its recent adoption by the Massachusetts Supreme Court.