Executive Privelege: A Constitutional Right Or Wrong?

Executive privilege is the power of the President and other executive branch officials to withhold certain information from the legislative and judicial branches of government. While the US Constitution does not expressly confer this power upon the executive branch, the Supreme Court has held that it derives from the constitutional separation of powers and is sometimes necessary for national security and the effective discharge of a President's powers. Executive privilege has been invoked by several US Presidents, including Nixon, who attempted to use it to protect himself and his advisors during the Watergate investigation, and Bush, who invoked it in response to congressional subpoenas. The exact parameters of executive privilege are still debated, and courts have generally ruled on a case-by-case basis, weighing the need for information against the need for confidentiality.

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The constitutional basis of executive privilege is rooted in the separation of powers

The doctrine of executive privilege is the power of the President and other executive branch officials to withhold certain information from the legislative and judicial branches. While the Constitution does not explicitly grant the Executive Branch this privilege, the Supreme Court has ruled that it is a necessary power that stems from the separation of powers.

The separation of powers divides the US government into three branches: the legislative, executive, and judiciary. Each branch has its own unique duties and responsibilities, and the separation ensures that no one branch holds too much power. Executive privilege, therefore, is a recognition that the President must be able to carry out the duties of the executive without interference from the other branches.

The first significant judicial shaping of executive privilege came in 1974 in the case of United States v. Nixon. President Nixon attempted to use executive privilege to prevent the release of secret tapes, transcripts, and meeting memoranda during the Watergate investigation. The Supreme Court unanimously ruled that executive privilege is constitutionally valid but not absolute. If requested documents and testimonies are relevant to a criminal investigation, they must be provided.

The exact parameters of executive privilege are still debated, as most claims have been resolved through negotiation rather than court order. The courts have generally held that statements of fact are exempt from privilege, while subjective opinions, recommendations, and advice are protected. Executive privilege has been used by every President to date, although some have used it more than others.

Executive privilege is an important power that allows the President to carry out their duties without interference. However, it can also be abused to block investigations or hide embarrassing information. As such, it is a contentious issue that continues to be the subject of political and legal debate.

The president's right to withhold information from Congress, the courts, and the public

Executive privilege is the power of the President and other officials in the executive branch to withhold certain forms of confidential communication from the courts and the legislative branch. 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. While the Constitution does not expressly confer upon the Executive Branch any such privilege, the Supreme Court has held that executive privilege is necessary for national security and derives from the constitutional separation of powers.

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. The Supreme Court ruled 8-0 that Nixon had to produce the evidence because executive privilege, while constitutionally valid, could not be absolute or unqualified. In the landmark case United States v. Nixon, also known as the Watergate Scandal, the Supreme Court unanimously declared that executive privilege is constitutional and sometimes necessary for national security.

Executive privilege generally allows the president and his close advisers to refuse to produce documents or testimony to the judicial or legislative branches under some circumstances. The exact parameters of the privilege are still very much in doubt because the overwhelming majority of executive privilege claims have been resolved by negotiation rather than court order. This is not surprising, given that most privilege claims are intensely political, and courts have created a doctrine to avoid ruling on intensely political questions. The scope and source of the Law Enforcement Privilege are unclear, particularly when asserted in the context of congressional investigations where committees have voiced objections to its use.

Executive privilege can be used in two circumstances: firstly, in certain national security needs, and secondly, in protecting the privacy of White House deliberations when it is in the public interest to do so. This allows presidential advisors to freely speak their minds without the threat of a subpoena. Every President to date has used this power in one way or another.

The need for protection of communications between high government officials

The Court recognised that the President must be able to receive candid and unfettered advice and that free and open discussions and deliberations must occur among his advisors and between those advisors and others within and outside the Executive Branch. This is to ensure that the President can effectively discharge his constitutional powers.

The protection of these communications is based on the constitutional separation of powers and the need to respect the carrying out of the duties of the presidency. This is known as the doctrine of executive privilege, which allows the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately, the public.

However, it is important to note that executive privilege is not absolute. The Supreme Court has held that if requested documents and testimonies are a key part of an investigation, then they must be brought forward. The Court must weigh the applicability of executive privilege by balancing the competing interests of the legislative and executive branches, as well as the interests of the judicial process.

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The scope and source of law enforcement privilege

Congress has historically viewed the Executive Branch's position on the confidentiality of law enforcement information as a nondisclosure policy rather than a constitutionally based privilege. In other words, Congress has seen the Executive Branch's non-disclosure of law enforcement information as a discretionary policy decision, rather than a constitutionally protected right.

The law enforcement privilege is not an absolute privilege, but rather a qualified common law privilege. It is designed to "prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation."

To assert the privilege, a responsible official in the department must lodge a formal claim of privilege, specifying the information requiring protection and explaining why it falls within the scope of the privilege.

Many states have laws or common law privileges similar to the federal law enforcement privilege, which can be used during state criminal prosecutions or civil matters.

The limits of executive privilege

One key limitation is that executive privilege does not provide a blanket exemption from disclosing information. In the United States v. Nixon case, the Supreme Court ruled that executive privilege is qualified and can be overcome if the information sought is essential to the justice of the case and unavailable elsewhere. This ruling set a precedent for balancing the need for information in judicial proceedings with the President's prerogatives.

The scope of executive privilege is also limited in terms of which branch of government is requesting the information. Requests from Congress, for example, may be constrained by the structural limitations imposed by the constitutional system of separated and balanced powers. Additionally, the privilege is generally limited to the core constitutional powers of the President and does not extend beyond the Executive Office of the President and the White House.

Another limitation is that executive privilege does not cover all types of information. While the presidential communications privilege is often considered rooted in the separation of powers, the deliberative process privilege is often viewed as rooted in common law, making it less difficult to overcome. The scope and source of the Law Enforcement Privilege, for instance, are unclear and have been the subject of consistent objections from congressional committees.

In recent times, the potential use of executive privilege to prevent disclosure of information to the House select committee investigating the January 6 riot has sparked debate. While former President Trump asserted executive privilege, President Biden chose not to assert it in this case, opting instead to evaluate such questions on a case-by-case basis.

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