Executive Privilege: A Constitutional Power?

Executive privilege is a concept that has been invoked by many US presidents, but it is not explicitly mentioned in the US Constitution. Instead, it is considered an implied power based on the separation of powers outlined in Article II, which ensures that one branch of the government does not become too powerful. The doctrine of executive privilege allows the President and other executive branch officials to withhold certain forms of confidential information from the legislative and judicial branches of the government. While the exact scope of executive privilege is still debated, it is typically invoked in matters of national security, foreign affairs, and military affairs.

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The historical use of executive privilege

The term "executive privilege" was first used by President Eisenhower during Senator Joseph McCarthy's crusade against communism. Eisenhower prevented Cabinet members and other advisors from being questioned in the famous McCarthy-Army hearings. He stated, "Any man who testifies as to the advice he gave me won't be working for me that night." This set a precedent for the protection of sensitive documents and allowed advisors to speak freely without the threat of a subpoena.

In 1833, President Andrew Jackson cited executive privilege when Senator Henry Clay demanded that he produce documents concerning statements made to his cabinet about the removal of federal deposits from the Second Bank of the United States during the Bank War.

President Lyndon B. Johnson believed that Eisenhower had gone too far with executive privilege, and he and his predecessor, John F. Kennedy, used it sparingly. However, President Richard Nixon brought executive privilege to the forefront of American politics during the Watergate investigation. Nixon attempted to use it to protect himself and his advisors, and his heavy use of executive privilege to block investigations complicated his successor Gerald Ford's efforts to control congressional investigations.

In 2007, President Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel Harriet Miers and former political director Sara Taylor. More recently, President Trump asserted executive privilege regarding the Mueller report and documents related to adding a citizenship question to the 2020 census.

The constitutional basis of executive privilege

Executive privilege is considered an implied power based on the separation of powers laid out in Article II of the US Constitution. This separation of powers is meant to ensure that one branch of the government does not become all-powerful. The doctrine of executive privilege defines the authority of the president and other executive branch officials to withhold certain forms of confidential communication from the legislative or judicial branches of the government.

The US Constitution does not explicitly mention executive privilege or any explicit reference to a privilege of confidentiality. However, the Supreme Court has held that executive privilege is constitutionally based and derives from the separation of powers and the need to carry out the duties of the presidency effectively. The Supreme Court has recognised the need for executive privilege, especially in the context of presidential communications, which are considered "presumptively privileged".

Historically, the assertion of executive privilege has been largely confined to areas of foreign relations, military affairs, pending investigations, and intragovernmental discussions. The scope of executive privilege has evolved through the Supreme Court's interpretation of constitutional law, and it has been invoked by presidents to protect national security and prevent interference with their official duties.

The power of executive privilege has been controversial and has led to constitutional confrontations between the executive and judicial branches. The Supreme Court has affirmed the power of the courts to resolve disputes over claims of executive privilege, but the extent of this power is still debated, especially in cases involving national security and sensitive information.

The scope of executive privilege

The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the Executive Branch from the Legislative or Judicial Branch of the government. The doctrine has been used by presidents to block investigations of their actions.

Historically, the assertion of the doctrine has been largely confined to the areas of foreign relations, military affairs, pending investigations, and intragovernmental discussions. Former Attorney General Rogers, in stating the position of the Eisenhower Administration, identified five categories of executive privilege:

• Military and diplomatic secrets and foreign affairs
• Information made confidential by statute
• Information relating to pending litigation, and investigative files and reports
• Information relating to internal government affairs privileged from disclosure in the public interest
• Records incidental to the above

The presidential communications privilege is a subcategory of executive privilege that protects the core communications of advisers closest to the president. There is a great deal of confusion about the actual scope of the presidential communications privilege. Various opinions and pronouncements from the Justice Department’s Office of Legal Counsel and the White House Counsel’s Office have described a very broad scope and reach of the presidential privilege. However, recent court opinions have reflected a much narrower understanding of the privilege.

The Supreme Court has recognized the president’s constitutionally based privilege to protect the confidentiality of documents or other information that reflects presidential decision-making and deliberations. The Court has held that executive privilege derives from the constitutional separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution.

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The judicial interpretation of executive privilege

The doctrine of executive privilege allows the President of the United States to withhold documents or information in his possession or in the possession of the Executive Branch from the Legislative or Judicial Branch of the government. While the Constitution does not expressly confer upon the Executive Branch any such privilege, the Supreme Court has held that executive privilege derives from the constitutional separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution.

The Supreme Court has played a critical role in defining the boundaries of executive privilege, particularly exemplified in the landmark case United States v. Nixon (1974), which ruled that the privilege cannot shield information relevant to a criminal investigation. The Court recognised a constitutionally based limited privilege grounded in the doctrine of the separation of powers. 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".

The Nixon case also affirmed the power of the courts to resolve disputes over claims of the privilege. However, it left unsettled just how much power the courts have to review claims of privilege to protect what are claimed to be military, diplomatic, or sensitive national security secrets. It did not indicate what the status of the claim of confidentiality of conversations is when raised in civil cases, nor did it touch upon the denial of information to Congress, or public disclosure of information.

The debate over the application of executive privilege has also been influenced by the actions and interpretations of Congress and the President. For instance, Chief Justice John Marshall, a strong proponent of the powers of the federal government but a political opponent of Thomas Jefferson, ruled that the Sixth Amendment to the Constitution, which provides for compulsory process for criminal defendants, did not provide any exception for the president.

The invocation of executive privilege by US presidents

Executive privilege is the right of the US President and high-level executive branch officers to withhold information from Congress, the courts, and the public. It is considered to be rooted in the separation of powers and the need for the President to receive candid advice. While the US Constitution does not explicitly mention executive privilege, the Supreme Court has held that it is constitutionally valid and derived from the separation of powers.

In the 20th century, several presidents, including Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, and George H.W. Bush, used executive privilege sparingly. Nixon's heavy use of executive privilege during the Watergate investigation, however, changed how Americans viewed this power, leading subsequent presidents to be more cautious in its invocation.

More recently, Bill Clinton invoked executive privilege 14 times during investigations into the Whitewater scandal and the Monica Lewinsky case. Barack Obama famously used executive privilege during the "Fast and Furious" scandal, while Donald Trump asserted it for the first time in 2019 regarding the Mueller report and census-related documents. Joe Biden has also asserted executive privilege to avoid disclosing evidence related to the January 6th Capitol riots.

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