DeSantis claims executive privilege, but it’s not in Florida Constitution or law

Gov. Ron DeSantis has been eyeing a run for president, but he’s not waiting until 2024 to assert one of the most contested legal rights associated with that office.

In multiple lawsuits, DeSantis’ lawyers have claimed that the governor wields executive privilege, a special right invoked by U.S. presidents that shields them from disclosing information of their choosing.

Yet in a bombshell decision last month in an otherwise little-noticed lawsuit, a Tallahassee judge agreed with DeSantis’ attorneys that he, too, possesses executive privilege.

The case, which is being appealed, sets up a high-stakes test of Florida’s government transparency laws — widely considered among the most open in the country. If higher courts uphold that DeSantis has the right to shield certain records, it could dramatically hinder the public’s ability to pry information out of the state, open government advocates warn.

The Tampa Bay Times and Miami Herald are joining other media outlets in preparing a friend of the court brief in the appeal, advocating against the withholding of records.

“We consent to be governed and don’t elect public officials to act without accountability,” said Michael Barfield, director of public access with the Florida Center for Government Accountability in Tallahassee. The group has sued the DeSantis administration in separate cases over records related to Florida’s flights transporting migrants from Texas to Martha’s Vineyard.

Barfield said that the DeSantis administration had likely been asserting executive privilege in multiple cases in hopes of having a higher court set a precedent that could be applied in other lawsuits.

“This has been a calculated effort to establish executive privilege so the governor has no accountability to the public,” Barfield said.

Catherine Cameron, a Stetson University professor specializing in media law, said she searched through previous cases and could find no instance of a Florida governor asserting executive privilege before DeSantis. Executive privilege is not mentioned in the state Constitution nor state law, unlike the public’s right to records, which is enshrined in both.

The governor’s office declined to answer emailed questions about its claim of executive privilege, directing a reporter to its legal filings.

DeSantis’ consultations about Supreme Court nominees

The case in which Leon County Circuit Judge Angela Dempsey agreed with DeSantis revolved around an anonymous person seeking the identities of “six or seven pretty big legal conservative heavyweights” whom DeSantis said in an August podcast interview he had consulted when selecting nominees for the Florida Supreme Court. These individuals, DeSantis said, “put these candidates through the wringer” by interviewing them at his request and then briefing him before he conducted his own interviews.

The plaintiff sought documents showing communications between the governor’s office and the “heavyweights.” In court, the governor’s office said it could not turn over the documents because they would reveal the identities of the advisers.

DeSantis’ legal team argued that it’s in the public’s best interest for some of the governor’s internal actions to remain secret so he can freely receive advice and consider all alternatives without fear of these consultations receiving public scrutiny.

“The interest in maintaining the confidentiality of the executive is vital to the public, as it fosters informed and sound gubernatorial deliberations and decision making,” DeSantis’ lawyers argued in a court filing.

Dempsey’s final order, dated Jan. 3, was highly similar to the proposed version submitted by DeSantis’ attorneys, according to a copy provided to the Tampa Bay Times.

DeSantis’ practice has been to control the message

Since the beginning of his first term in 2019, DeSantis has tightly controlled his administration’s messaging. He rarely grants interviews to mainstream news outlets — preferring instead to speak with conservative media — and some of his spokespeople frequently mock journalists on Twitter. His office, as well as state agencies under the executive branch, can take months or more than a year to comply with records requests.

Like Florida, the U.S. Constitution does not mention executive privilege. But presidents going back to George Washington have invoked that ability. Its broad contours have been shaped over the years as courts and presidents have sparred over when it can legally be applied according to the separation of powers.

In 1974, the Supreme Court declared in United States v. Nixon that while the right to executive privilege exists, President Richard Nixon had to turn over the Watergate tapes. Twenty years earlier, President Dwight Eisenhower used executive privilege to prevent his advisers from testifying in the infamous hearings held by Sen. Joseph McCarthy about alleged communists in the Army. Bill Clinton invoked executive privilege to try to avoid his senior aides testifying during the Monica Lewinsky scandal, and Donald Trump used it during the Robert Mueller investigation, the Jan. 6 committee hearings and more.

Governors in other states have also tried to shield information using this power. In a handful of states, including Oklahoma and Washington, courts have affirmed governors’ rights to executive privilege. Some states, like Michigan, have gone even further by exempting the governor’s office from public records law.

Cameron, the law professor, said courts often hesitate to wade into questions of executive privilege because they involve hazy issues of where an executive’s authority ends and the powers of the courts or the legislature begin. But it’s possible now that the 1st District Court of Appeal, and the Florida Supreme Court, may settle the question of executive privilege so there is consistency across the state, she said.

“Florida is known for ... this long history of being very open,” Cameron said. But the fact that a few other governors have won these cases makes it “really hard to predict, unfortunately.”

If DeSantis wins the right to executive privilege, his office would be able to cite it as a reason to deny public records requests, she added, and the only way to challenge that reasoning in each instance would likely be to sue.

Adam Marshall, a staff attorney with the Reporters Committee for Freedom of the Press, is skeptical of the legality of DeSantis’ argument because the Florida Constitution specifically guarantees that the public has a right to records, including from the executive branch.

He said the use of executive privilege at the state and federal levels has led to a chipping away of public transparency by politicians of both parties.

“We don’t have democracy by press releases,” Marshall said. “We have democracy by understanding what our elected officials are doing and why.”