Executive Privilege: Is It In The Constitution?

Executive privilege is a concept that has been invoked by many US presidents, from George Washington to Donald Trump, to protect confidential communications and resist subpoenas. However, the term executive privilege is not explicitly mentioned in the US Constitution, leaving the exact parameters of the privilege in question. The Supreme Court has ruled that executive privilege is implied by the doctrine of the separation of powers, and is sometimes necessary for national security. Despite this, the Court has also made clear that executive privilege is not absolute and that the need for information in a judicial proceeding may outweigh a President's privilege.

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Executive privilege and the US Constitution

Executive privilege is the right of the US president and other executive branch members to maintain confidential communications under certain circumstances. This includes the power to withhold certain information from the legislative and judicial branches of the government and to resist some subpoenas and other oversight actions.

The term "executive privilege" is not explicitly mentioned in the US Constitution. However, the Supreme Court has ruled that it is a consequence of the separation of powers doctrine, which divides the powers of the US government into legislative, executive, and judicial branches. The first significant judicial shaping of executive privilege came in 1974 when President Nixon attempted to assert executive privilege to prevent the release of secret tapes, transcripts, and meeting memoranda related to the Watergate Scandal. The Supreme Court ruled that Nixon had to turn over the tapes, establishing that even the president has a legal duty to provide evidence relevant to a criminal case.

The exact parameters of executive privilege are still debated, and courts have generally ruled on a case-by-case basis, weighing the need for confidentiality against the need for justice. While executive privilege has been recognised by the courts, some scholars argue that it does not exist as a specific constitutional right. Over time, executive privilege has lost some of its power, with courts denying claims when the prosecutor's needs outweigh the confidentiality of executive documents.

Despite this, presidents continue to invoke executive privilege, and the courts continue to judge its necessity. The concept of executive privilege allows for internal discussions within the executive branch without fear of exposure and is seen as fundamental to the operation of the government.

Presidential power to withhold information

The term "executive privilege" does not appear in the US Constitution. However, the Supreme Court of the United States has ruled that executive privilege is a consequence of the doctrine of the separation of powers, derived from the supremacy of each branch in its area of constitutional activity.

Executive privilege is the right of the US president and other executive branch members to maintain confidential communications under certain circumstances and resist some subpoenas and other oversight by the legislative and judicial branches. The right comes into effect when revealing the information would impair governmental functions.

The presidential power to withhold information has been defined by Andy Wright as "an assertion of presidential authority to preserve Executive Branch confidentiality interests by withholding information from a judicial or congressional proceeding." Mark Rozell, a preeminent authority on executive privilege, defined it in 1999 as "the right of the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public."

The presidential power to withhold information is not absolute. In United States v. Nixon, the Supreme Court unanimously declared that executive privilege is constitutional and sometimes necessary for national security. However, the Court also held that executive privilege is not all-encompassing. If requested documents and testimonies are crucial to an investigation, they must be provided.

The use of executive privilege has evolved over time. In the last half-century, it has lost some of its lustre due to several defeats in court. However, history indicates that presidents will continue to invoke this power, and courts will continue to judge its necessity.

Supreme Court rulings on executive privilege

The concept of executive privilege is not mentioned in the US Constitution. However, over the decades, courts have found that it is rooted in the separation of powers doctrine that divides the power of the US government into legislative, executive, and judicial branches.

The Supreme Court has addressed executive privilege in several cases, including United States v. Nixon, Clinton v. Jones, and Trump v. Mazars.

United States v. Nixon

In one of the most famous Supreme Court cases dealing with executive privilege, United States v. Nixon, the Court ruled against President Richard Nixon, who claimed that executive privilege protected him from having to release the Watergate tapes to the special prosecutor. The Court held that there is a qualified privilege, which, once invoked, creates a presumption of privilege, and the party seeking the documents must then make a "sufficient showing" that the "presidential material" is "essential to the justice of the case". Chief Justice Warren Burger stated that executive privilege would most effectively apply when the oversight of the executive branch would impair that branch's national security concerns. The Court also acknowledged that the principle of executive privilege did exist, but rejected Nixon's claim to an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances".

Clinton v. Jones

In Clinton v. Jones, executive privilege was invoked to prevent President Bill Clinton from having to testify in relation to a sexual harassment accusation brought against him from before he was president. The Court ruled against Clinton, establishing that activities prior to assuming the office of president were not protected.

Trump v. Mazars

In Trump v. Mazars, President Donald Trump claimed that executive privilege protected him from releasing his tax returns and financial records to Congress. The Supreme Court ruled that this case raised questions of separation of powers rather than executive privilege, and that Congress needed a legislative reason to request the documents rather than conducting a criminal investigation, which is a power of the executive branch.

Other Cases

During the Army-McCarthy hearings in 1954, Eisenhower invoked executive privilege to refuse the McCarthy Committee subpoenas of transcripts of monitored telephone calls from Army officials and information on meetings between Eisenhower officials relating to the hearings. The Supreme Court addressed executive privilege in this case, noting the "valid need for protection of communications between high Government officials".

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Historical precedent set by George Washington

The term "executive privilege" does not appear in the US Constitution. However, George Washington, the first president of the United States, set a historical precedent for the concept.

After a failed military operation against Native Americans, Congress sought records and testimonies from White House officials. Washington and his cabinet agreed that the President had the right to refuse these requests in the name of national security. Washington also argued that the House of Representatives had no right to see the Jay Treaty signed between the US and Great Britain. Although he eventually relented in both cases, he set a precedent for asserting executive authority.

In 1793, Washington and his cabinet crafted a series of rules of neutrality, prohibiting the arming of privateers and naval ships of belligerent nations, and permitting the commerce of private vessels not intended for warfare. Congress later codified these rules into law, essentially approving Washington's handling of the crisis and ceding authority over foreign policy to the executive branch.

Washington, alongside Alexander Hamilton, his former aide-de-camp and first secretary of the treasury, set a precedent for the responsible, vigorous, and independent exercise of executive discretion. Hamilton defended the president's prerogative to interpret treaties and issue proclamations, providing one of the clearest justifications for constitutional executive discretion in US history.

Washington was aware of the contentious nature of presidential prerogatives and proceeded cautiously when considering their exercise. Nevertheless, his actions, such as the interpretation of the 1778 treaty with France, demonstrated his willingness to unilaterally interpret and execute the law of the land.

Future implications for US Presidents

Executive privilege is a principle that grants the US president and key members of the executive branch the ability to withhold certain information from Congress, the courts, and the public. While the term is not mentioned in the US Constitution, the Supreme Court has ruled that it is a consequence of the doctrine of the separation of powers.

The future implications for US presidents regarding executive privilege are difficult to predict with certainty, but there are several considerations that can be made. Firstly, the use of executive privilege by presidents has evolved over time, with some presidents like Nixon, Clinton, and Trump, invoking it more frequently than others. Nixon's use of executive privilege during the Watergate scandal significantly changed how Americans viewed this principle, leading subsequent presidents to use it more sparingly.

Secondly, the courts, including the Supreme Court, have played a crucial role in defining the limits of executive privilege. Several court cases have established that executive privilege is not absolute and must yield when requested information is essential to an investigation or when the needs of the judicial process outweigh the privilege. These rulings set important precedents that may influence future presidential use of executive privilege.

Thirdly, the specific circumstances and justifications for invoking executive privilege are critical. While executive privilege is often associated with national security concerns, it can also be invoked to protect the privacy of White House deliberations and ensure candid decision-making. Presidents will need to carefully assess whether their use of executive privilege aligns with these established principles.

Moreover, the political consequences of invoking executive privilege cannot be overlooked. The public, Congress, and the media scrutinize the use of executive privilege, particularly in controversial or high-profile cases. Presidents will need to navigate the potential political fallout and the impact on their relationships with other branches of government.

Finally, the absence of a clear precedent on the scope of executive privilege means that future presidents will continue to shape its boundaries. The lack of definitive court rulings on executive privilege means that each invocation of the principle contributes to its evolving interpretation. Future presidents will likely continue to assert executive privilege, but they will do so within a landscape shaped by past controversies and judicial rulings.

In conclusion, while the future implications for US presidents regarding executive privilege are uncertain, the principle will likely continue to be a tool for presidents to protect sensitive information. However, presidents will need to be mindful of the legal, political, and public ramifications of invoking executive privilege and navigate an evolving landscape of judicial precedents and societal expectations.

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