EXECUTIVE PRIVILEGE

The right of the president of the United States to withhold information from Congress or the courts.

White House Visitor Logs are Public

Presidents of the United States have claimed that certain information is privileged and cannot be disclosed to Congress or to the public. The administration of George W. Bush has asserted executive privilege a number of times when Congress has sought documents or testimony from high-ranking Executive Branch officials. The Bush Administration successfully turned away a lawsuit that sought information about which energy company executives met with Vice President Richard Cheney to discuss energy policies. In 2008 two pending lawsuits proceeded that sought White House visitor logs. One action seeks to determine how often several conservative religious leaders visited the White House for meetings. A second action seeks to determine the number of times Jack Abramoff, a corrupt and now convicted lobbyist, visited the White House. In both cases the Bush Administration asserted executive privilege, arguing that the logs were not public records. Moreover, the White House used a 2006 agreement between it and the Secret Service to bolster its argument.

In the first case the Citizens for Responsibility and Ethics in Washington (a liberal advocacy group) asked to see the visitor logs to determine how many times the Rev. Jerry Falwell, Focus on the Family's James Dobson, and other conservative religious leaders met with the Bush Administration. Under the federal Freedom of Information Act (FOIA), citizens are entitled to all public records unless the government can assert an exception. The White House declined to release the logs, claiming they are presidential documents. (During the Clinton Administration the visitor logs were used by political opponents to document the visits of political donors, pardon-seekers, and former White House intern Monica Lewinsky.) This argument, which had not been made by previous administrations, was buttressed by a 2006 agreement between the White House and the Secret Service. Under this agreement the Secret Service, which maintains the logs, turns over the logs to the White House, which are labeled presidential documents. This label means that the logs cannot be released under the FOIA. However, this agreement was not made until after the litigation in this case had begun.

After the White House asserted its FOIA exception and denied release of the logs, the advocacy group asserted its right under FOIA and appealed the decision to federal district court . Judge Royce Lamberth ruled in December 2007 that the visitor logs were public records. The judge grounded the decision on the fact that the Secret Service and not the White House directly maintained the logs. Lamberth stated that “Because the Secret Service creates, uses and relies on, and stores visitor records, they are under its control. Knowledge of these visitors would not disclose presidential communications or shine a light on the president's or the vice president's policy deliberations.” The fact that the 2006 agreement between the White House and the Secret Service came after the litigation in this case had begun made it, in Lamberth's view, “self-serving.”

The Bush Administration appealed the order to the U.S. Circuit Court of Appeals for the District of Columbia. The three-judge appeal panel conducted oral argument in April 2008. The government's lawyer argued that releasing lists of visitors would hurt the president's right to seek advice privately and confidentially. Though the White House called the logs presidential documents the appeals panel was skeptical. One judge noted that the only information given was the name of the person visiting the White House. A person could stand outside the White House and observe who goes in and who goes out. Another judge raised concerns about giving the president blanket powers to make records of White House agencies presidential documents that are currently public records. Moreover, persons who visit the White House, such as social planners and caterers, would be treated the same as persons who give advice to the president privately.

The appeals court recognized the need for the president to receive advice privately and suggested that a compromise should be reached by both sides that balanced the rights in question. However, the government said it would be impossible to screen the visitor lists to determine which meetings might be sensitive. Though the court did not immediately rule, whatever decision that it made would certainly be appealed to the Supreme Court.