Charles L. Black, Jr.—

SHOULD HEARINGS BE PUBLIC? 

There may be early stages in the investigation process in the House when confidentiality should be maintained. Public disclosure of raw evidence, not yet evaluated as to credibility or relevance, might do some harm, and can do no good. In the later stages, and certainly in the Senate trial, it seems to me that the proceedings should be just as open as those in any courtroom. With reporters present, and with members of the public coming and going in the galleries, all danger of substantial secrecy would vanish. Trial on an impeachment is public business. 

I would on the other hand (though I am certain that others will disagree) most strenuously advocate that radio, television, and cameras have no more place in this solemn business than they have in any other trial, and for the same reasons. There is no point in inflicting humiliation greater than that inflicted by the mere fact of impeachment. Nothing solid is added to public information by making a continuing spectacle of a trial. Above all, television, radio, and photography act upon that which they purport to observe; what one sees and hears is not what would have occurred if these modern means of communication were not there. At least there is a great danger of this, a danger often realized in the past, and that is enough to justify exclusion. 

Continual nationwide television exposure contains another danger: it maximizes the chances of development of public pressure for some given result. It is of course the duty of senators not to take such pressure into account, but we would regard as totally unfair any other sort of trial where such pressure was applied. It therefore seems wrong to encourage it. The judgment of the public ought to come after the fact, on sober and long consideration of a record which will remain accessible forever. Play-by-play coverage contributes in no way to the formation of this ultimate evaluation, the only one that counts. The taking, at intervals, of public opinion polls on guilt or innocence, should be looked on as an unspeakable indecency. 

IS THERE ANY “PRESIDENTIAL PRIVILEGE” IN IMPEACHMENT PROCEEDINGS? 

Early in the investigations leading to the commencement of the latest presidential impeachment process, the president claimed the privilege of withholding from other branches of government the tenor and content of his own conversations with his close advisers in the White House. I regarded this claim as moderate and reasonable, and thought its upholding was essential to the efficacious and dignified conduct of the presidency and to the free flow of candid advice to the president. There was little public agreement with the view I then expressed, and the lower courts, though granting some scope to the privilege, took a very narrow view of it. I hope the question can be reconsidered in quieter days; I do not desire to unsay anything I have said. As time went on, however, the factual situation changed. The president himself released copious quantities of what I would have regarded as privileged material. Further, the issue, for purposes of the impeachment process, is not whether any federal or state court, or any committee of Congress, can force revelation of the president’s conversations with his close advisers, but whether that can lawfully be done by a House committee conducting an impeachment investigation, or by the Senate at an impeachment trial. 

As to the effect of the release of some material by the president, I wholly reject the theory that the president “waives” his privilege of confidentiality by releasing some material as to which the privilege might have been claimed. The enforcement of this “waiver” seems to me wholly wrongheaded, for it must make any president reluctant to reveal anything, for fear he will be held to have “waived” his privilege altogether.

As to whether and at what stage the privilege (if it exists at all) becomes invalid in an impeachment proceeding, I stand in some doubt, and can do no more for the reader than open the issues. 

To begin, it seems that the privilege has a stronger claim in the earlier stages of the impeachment process than in the later. An investigation in its earlier stages may often be rather diffuse, and the close relevance of any given material may be correspondingly less obvious. By the time of the Senate trial, it should be much more sharply clear what bearing any particular matter has on the issues as now precisely drawn. 

Further, one must distinguish between two quite different reasons underlying claims of presidential confidentiality. First, it may be claimed that particular substantive information cannot be divulged without harm to some vital national interest—predominantly national security. Secondly, it may be claimed that, regardless of the sensitive character of the substantive information, disclosure of conversations will impede the processes of consultation in the White House, since participants must always feel on parade, if they know that revelation of what they say can easily be compelled by any committee of Congress or by a court, and their perhaps tentative positions then publicized. 

The second of these reasons may not be good enough to defeat the claim of the Senate (to take the strongest case) to the information it needs in an impeachment trial. It seems inevitable that the first reason—substantive national security—still has room for operation, even at that level. Suppose, for example, that a president were to be charged, in Articles of Impeachment, with having dangerously denuded the United States of its defences, on some occasion of international tension. That charge could not be plumbed without delving into the most secret aspects of the military establishment—including, it might be, data on the deployment and capacity of our nuclear submarines. I should think that, in such a case, it might well be the plain duty of the president to decline to furnish this information at a trial, where its dissemination could not adequately be controlled. 

In sum, my own views on presidential privilege are not now the received ones, and as a practical matter it seems unlikely that the Houses of Congress will concede the privilege much scope in an impeachment proceeding. But a temporary wide agreement on such issues does not authoritatively settle them; a presidential claim of privilege might therefore still be made in good faith. If it were made, some of the questions just explored would become relevant. 

From Impeachment by Charles L. Black, Jr. and Philip Bobbitt. Published by Yale University Press in 2018. Reproduced with permission. 

Charles L. Black, Jr. (1915–2001), was Sterling Professor of Law at Yale Law School. Philip Bobbitt is the Herbert Wechsler Professor of Federal Jurisprudence at Columbia Law School.

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