The attorney representing Washington Gov. Christine Gregoire in a lawsuit brought by The Freedom Foundation conceded to the state Supreme Court on Thursday morning that executive privilege is a power one could easily abuse.
Which is why, he said, only the governor should be permitted to wield it.
“Executive privilege is just that – a privilege – and we shouldn’t extend it to any other person in the executive branch or any other branch of the government,” said Deputy Solicitor General Alan Copsey of the state Attorney General’s Office. “The governor should be the only one who can use it. But occasionally she does need elbow room to exercise her discretion as to which particular cases are too sensitive to be made public.”
The Freedom Foundation, an Olympia-based think tank advocating transparency in government, brought suit against the governor last year, noting she had declined to honor more than 500 public records requests from 2007 to 2010 alone, citing executive privilege – a right never enumerated in the state constitution.
A Thurston County judge ruled in Gregoire’s favor last year but the case was appealed to the state Supreme Court, which heard arguments from both sides on Thursday morning.
“The governor should be given the benefit of the doubt,” Copsey argued. “Her assertion of the privilege should carry the presumption of correctness and the burden of proof should be on the requester to show why that privilege should not apply.”
In her brief, Gregoire’s attorneys cited the same arguments used by President Richard Nixon in 1974 to justify withholding documents from the Watergate Commission.
“The governor isn’t the commander-in-chief of the nation,” Copsey said, “but she’s the commander-in-chief of the state military. She has analogous powers to the president in that respect.”
Public disclosure attorney Michelle Earl-Hubbard, arguing the case for the Freedom Foundation, scoffed at the comparison.
“The governor of Washington doesn’t have access to information that would threaten national security or international affairs,” she said. “We’re not talking about situations where lives are at stake. We’re just talking about cases where, for whatever reason, she decides it isn’t in her own interest to comply with a legal public disclosure request.”
According to a statement on Thursday morning from the governor’s office, Gregoire “has released more than 90,000 pages through public records request since 2007 – and withheld approximately 250 pages due solely to executive privilege, some of which have since been released. Additionally, the Governor’s Office has produced tens of thousands of emails. Overall, the Governor’s Office has withheld approximately two-tenths of 1 percent of documents requested due to executive privilege.”
“So what?” responded former Freedom Foundation Staff Counsel Mike Reitz. “It’s always the case that what you want is buried under a mountain of irrelevant information. It doesn’t matter how many documents she gave out that didn’t mean anything. What matters is that she’s still withholding information for reasons that benefit her and her agenda, not the people of this state.”
Gregoire’s attorneys warned the justices that finding in favor of The Freedom Foundation could throw open the doors to all manner of transparency reforms, including making the court’s own deliberations a matter of public record.
Earl-Hubbard called their arguments “scare tactics.”
“In big, humongous cases that have wide-reaching implications like this one, you’re always asked to go further than the scope of the original lawsuit,” she said. “But you only need to judge this case on the basis of the facts before you.”
According to Earl-Hubbard, the governor is asserting that every law passed by the Legislature has a built-in provision allowing her alone to decide whether to make discussions regarding those laws available to the public.
“If she needs an exception, the Legislature can always pass one,” she told the justices. “The idea that every law must include an out clause for the governor is an extremely dangerous and insidious notion, and this court has not been granted the power to go that far.”
The court is expected to issue its ruling in six months to a year.