Isabella Carter
Executive privilege is a concept that allows the president and their advisers to refuse to produce documents or provide testimony to the judicial or legislative branches under certain circumstances. While the term is not mentioned in the US Constitution, the Supreme Court has ruled that it is a consequence of the separation of powers and necessary for carrying out the duties of the presidency. The doctrine defines the authority of the president to withhold information from Congress, the courts, and the public. Every president has invoked executive privilege, but its legitimacy has been questioned in several court cases, including United States v. Nixon, which set a precedent for the limits of executive privilege.
| Characteristics | Values |
|---|---|
| First use of the term "executive privilege" | President Eisenhower |
| First use of executive privilege | President Washington, 1792 |
| Landmark Supreme Court case confirming executive privilege | U.S. v. Nixon, 1974 |
| First president to invoke executive privilege to block a congressional subpoena | George W. Bush, 2007 |
| Most recent president to invoke executive privilege | Joe Biden, 2022 |
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What You'll Learn
Executive privilege is not mentioned in the US Constitution
Executive privilege is a concept that allows the President of the United States and high-level executive branch officers to withhold information from Congress, the courts, and the public. While every US President has invoked executive privilege at some point, it is not explicitly mentioned in the US Constitution.
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 Supreme Court of the United States has ruled that executive privilege and congressional oversight are consequences of the doctrine of the separation of powers, derived from the supremacy of each branch in its area of constitutional activity.
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, holding that there is a qualified privilege, which, once invoked, creates a presumption of privilege. The Court ruled that executive privilege is constitutional and sometimes necessary for national security. However, it is not absolute or unqualified—if requested documents and testimonies are essential to an investigation, they must be provided.
While the Constitution does not expressly mention executive privilege, the concept became evident shortly after the founding. In 1792, President George Washington and the first Cabinet decided on a policy of producing documents in response to congressional requests only if they considered it in accordance with "the public good". Subsequent presidents continued using this standard, including President Thomas Jefferson when he refused to produce documents and testimony for Aaron Burr's impeachment trial.
The first significant judicial shaping of executive privilege came in 1974 during the Watergate scandal, when President Nixon attempted to assert executive privilege to prevent the release of secret tapes, transcripts, and meeting memoranda.
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The Supreme Court ruled executive privilege is constitutional
The concept of executive privilege, which allows the President of the United States to refuse to disclose certain information to Congress or the courts, emerged in the 1950s. However, its historical roots can be traced back to royal prerogative and legislative privileges. While the term "executive privilege" is not explicitly mentioned in the Constitution, the Supreme Court has ruled that it is constitutional and a consequence of the doctrine of the separation of powers. This was established in the landmark case United States v. Nixon in 1974, where the Supreme Court ruled that executive privilege cannot shield information relevant to a criminal investigation.
In the United States v. Nixon case, President Richard Nixon claimed that executive privilege protected him from having to release the Watergate tapes to the special prosecutor. The Supreme Court ruled against Nixon, stating that criminal activity was under investigation, which directly spoke to the president's duties as chief executive. The Court held that executive privilege is not absolute and that if requested documents and testimonies are crucial to an investigation, they must be provided.
The Supreme Court has played a critical role in defining the boundaries of executive privilege. While it has recognised a constitutionally based limited privilege, it has rejected the idea of absolute privilege. This rejection is based on the legitimate needs of other branches of government to acquire information from the executive. The Court has set limits to executive privilege, ruling that the president may not give privileged status to information that is instrumental to a criminal investigation or that impairs national security concerns.
The Supreme Court has also ruled that the presidential discretion to refuse to appear before a legislative or judicial proceeding is a separate category of executive discretion called executive privilege or presidential privacy. This discretion allows the president to withhold documents or information in his possession or that of the Executive Branch from the Legislative or Judicial Branch. The Court confirmed the legitimacy of this doctrine in United States v. Nixon, holding that there is a qualified privilege that, once invoked, creates a presumption of privilege. The party seeking the documents must then demonstrate that the information is essential to the case.
In recent years, there have been several notable cases involving executive privilege and the Supreme Court. In 2019, then-President Trump asserted executive privilege over documents related to adding a citizenship question to the 2020 census. The Supreme Court ruled in 2020 that this case raised questions of separation of powers rather than executive privilege. Additionally, the Supreme Court heard arguments in two cases involving Trump's tax returns and financial records, Trump v. Mazars and Trump v. Deutsche Bank. The Court's rulings in these cases continue to shape the understanding and application of executive privilege.
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Presidents have used executive privilege to withhold information
While the term "executive privilege" 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. Executive privilege is the right of the president and other members of the executive branch to withhold information from Congress, the courts, and the public. This power is typically invoked in matters relating to national security, the military, and foreign affairs.
Several US presidents have used executive privilege to withhold information. In 1833, President Andrew Jackson cited executive privilege when he refused to produce documents demanded by Senator Henry Clay regarding statements made to his cabinet about the removal of federal deposits from the Second Bank of the United States during the Bank War.
During Senator Joseph McCarthy's crusade against communism, President Eisenhower, who first coined the term "executive privilege," prevented Cabinet members and other advisors from being questioned in the famous McCarthy-Army hearings. He invoked executive privilege 44 times between 1955 and 1960 to protect sensitive documents and allow his advisors to speak freely without the threat of a subpoena.
President Richard Nixon attempted to use executive privilege to protect himself and his advisors during the Watergate investigation. In the landmark Supreme Court case United States v. Nixon, the Court unanimously declared that executive privilege is constitutional but not absolute. The Court ordered Nixon to hand over the tapes, arguing that the president cannot withhold criminal evidence by simply claiming confidentiality.
President Bill Clinton used executive privilege 14 times during investigations into the Whitewater scandal and the Monica Lewinsky affair, including to protect himself and First Lady Hillary Clinton from testifying.
On June 20, 2012, President Barack Obama asserted executive privilege to withhold certain Department of Justice documents related to the Operation Fast and Furious controversy.
President Donald Trump has also invoked executive privilege, although the details are unclear.
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The exact parameters of executive privilege are unclear
The term "executive privilege" is not explicitly mentioned in the Constitution, and its legitimacy has been a subject of contention. The Supreme Court has ruled that executive privilege is derived from the constitutional separation of powers, ensuring the effective discharge of the President's powers. However, the Court has also clarified that it is not absolute and does not provide blanket confidentiality. In the United States v. Nixon case, the Court unanimously declared that executive privilege is valid but must yield to the needs of the judicial process in certain instances.
The application of executive privilege has evolved over time, with each President utilising it differently. For example, Eisenhower used executive privilege to prevent Cabinet members from being questioned during the McCarthy-Army hearings, while Nixon attempted to use it to protect himself and his advisors during the Watergate investigation. The Nixon era remains a pivotal moment in shaping the judicial understanding of executive privilege, with the Supreme Court's rulings setting important precedents.
Despite these rulings, the exact scope of executive privilege remains ambiguous. The majority of privilege claims are resolved through negotiation rather than court order, and the courts tend to avoid ruling on intensely political questions. As a result, the legal community relies on opinions from the Department of Justice Office of Legal Counsel, which are not binding. The lack of judicial involvement is particularly notable in disputes between Congress and the President.
The five categories of executive privilege, as outlined in case law and OLC opinions, include presidential communications, deliberative process, attorney-client communications, and two other types of privilege. The presidential communications privilege is rooted in the separation of powers and is more challenging to overcome than the deliberative process privilege, which is often considered rooted in common law.
In conclusion, while executive privilege grants the President the authority to withhold certain information, the precise limits of this authority remain unclear. The parameters of executive privilege continue to be shaped by political negotiations, judicial interpretations, and the specific circumstances of each case.
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Executive privilege is a collection of different rights
Executive privilege is a controversial and complex principle that has evolved over time through judicial interpretation and executive assertion, rather than being explicitly spelled out in the US Constitution. It is a collection of rights and immunities that US presidents and other members of the executive branch can assert, and its scope and application have been the subject of much debate.
While the term "executive privilege" is not found in the Constitution, the powers and principles associated with it are derived from two primary sources: the separation of powers doctrine and the presidential immunity doctrine. The separation of powers, as outlined in the Constitution, establishes a system of checks and balances among the three branches of government, granting each branch certain exclusive powers. This implicit grant of authority forms the basis for executive privilege, as it suggests that the executive branch has inherent powers and prerogatives that are beyond the reach of the legislative or judicial branches.
The presidential immunity doctrine, which has its roots in English common law, holds that the president should be immune from certain legal processes and obligations in order to effectively perform his constitutional duties. This doctrine has been invoked to support various aspects of executive privilege, including immunity from prosecution for official acts, protection of presidential communications, and the ability to withhold information from Congress or the courts.
The specific rights and immunities encompassed by executive privilege have been defined and refined through a series of court cases and political battles. One of the most well-known assertions of executive privilege occurred during the Watergate scandal, when President Richard Nixon tried to prevent the release of White House tapes and other evidence. The Supreme Court ultimately ruled against Nixon, establishing important limits on executive privilege and affirming the power of the other branches to hold the president accountable.
Other instances where executive privilege has been invoked include the Iran-Contra affair during the Reagan administration, the Valerie Plame affair during the George W. Bush administration, and multiple occasions during the Obama administration regarding congressional investigations into the "Fast and Furious" gun-running operation and the terrorist attack on the US compound in Benghazi, Libya. Each of these incidents contributed to the evolving understanding of the scope and limits of executive privilege.
In summary, while executive privilege is not explicitly added to the Constitution as a single, unified concept, it is a collection of different rights and immunities that have been derived from constitutional principles and judicial interpretations. Its evolution reflects the dynamic nature of constitutional law and the ongoing struggle to maintain a balance of powers between the branches of government.
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Frequently asked questions
No, the term "executive privilege" is not mentioned in the Constitution. However, the Supreme Court has ruled that it is derived from the constitutional separation of powers and is sometimes necessary for national security.
Executive privilege allows the president and their close advisers to refuse to produce documents or provide testimony to the judicial or legislative branches under certain circumstances. It is designed to protect sensitive information and allow advisers to speak freely without the threat of a subpoena.
The first known use of executive privilege was by President Andrew Jackson in 1833, when he cited it in response to a demand for documents from Senator Henry Clay. However, the term "executive privilege" was first coined by President Eisenhower during the McCarthy-Army hearings to prevent his advisers from being questioned.
