Executive privilege
Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and other oversight by the legislative and judicial branches of government in pursuit of particular information or personnel relating to those confidential communications. The right comes into effect when revealing the information would impair governmental functions. Neither executive privilege nor the oversight power of Congress is explicitly mentioned in the United States Constitution.[1] However, the Supreme Court of the United States has ruled that executive privilege and congressional oversight each are a consequence of the doctrine of the separation of powers, derived from the supremacy of each branch in its area of constitutional activity.[2]
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon in the context of a subpoena emanating from the judiciary instead of emanating from Congress.[3] 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 further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.[3] Regarding requests from Congress (instead of from the courts) for executive branch information, as of a 2014 study by the Congressional Research Service,[4] only two federal court cases had addressed the merits of executive privilege in such a context, and neither of those cases reached the Supreme Court.[5]
In addition to which branch of government is requesting the information, another characteristic of executive privilege is whether it involves a "presidential communications privilege" or instead a "deliberative process privilege" or some other type of privilege.[4] The deliberative process privilege is often considered to be rooted in common law. In contrast, the presidential communications privilege is often considered rooted in the separation of powers, thus making the deliberative process privilege less difficult to overcome.[4][6] Generally speaking, presidents, congresses and courts have historically tended to sidestep open confrontations through compromise and mutual deference because of previous practice and precedents regarding the exercise of executive privilege.[4]
Early precedents[edit]
Deliberative process privilege is a specific instance of the more general principle of executive privilege. It is usually considered to be based upon common law rather than separation of powers, and its history traces back to the English crown privilege (now known as public-interest immunity).[6] In contrast, the presidential communications privilege is another specific instance of executive privilege, usually considered based upon the separation of powers. Therefore, it is more difficult to overcome than the deliberative process privilege.[4] A significant requirement of the presidential communications privilege is that it can only protect communications sent or received by the president or his immediate advisors. In contrast, the deliberative process privilege may extend further down the chain of command.[4]
In the context of privilege assertions by United States presidents, law professor Michael Dorf has written: "In 1796, President George Washington refused to comply with a request by the House of Representatives for documents related to the negotiation of the then-recently adopted Jay Treaty with the Kingdom of Great Britain. Washington reasoned that the Senate alone plays a role in the ratification of treaties, and therefore the House had no legitimate claim to the material. Therefore, Washington provided the documents to the Senate but not the House."[7]
President Thomas Jefferson continued the precedent for this in the trial of Aaron Burr for treason in 1809. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to testify or provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president, would be the judge of that. Jefferson refused to testify personally but provided selected letters.
In 1833, President Andrew Jackson cited executive privilege when Senator Henry Clay demanded that he produce documents concerning statements the president made to his cabinet about the removal of federal deposits from the Second Bank of the United States during the Bank War.[8]
Cold War era[edit]
During 1947–49, several major security cases became known to Congress. There followed a series of investigations, culminating in the famous Hiss–Chambers case of 1948. At that point, the Truman Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems. Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters. Investigation of the State Department and other cases was stymied, and the matter was left unresolved.
During the Army–McCarthy hearings in 1954, Eisenhower used the claim of executive privilege to forbid the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Department of Defense employees were also instructed not to testify on such conversations or produce any such documents or reproductions.[9] This was done to refuse the McCarthy Committee subpoenas of transcripts of monitored telephone calls from Army officials, as well as information on meetings between Eisenhower officials relating to the hearings. This was done in the form of a letter from Eisenhower to the Department of Defense and an accompanying memo from Eisenhower Justice. The reasoning behind the order was that there was a need for "candid" exchanges among executive employees in giving "advice" to one another. In the end, Eisenhower invoked the claim 44 times between 1955 and 1960.
Post-Watergate era[edit]
Ford administration[edit]
In the wake of Nixon's heavy use of executive privilege to block investigations of his actions, Ford was scrupulous in minimizing its usage. However, that complicated his efforts to keep congressional investigations under control. Political scientist Mark J. Rozell concludes that Ford's: