Executive Privilege

Executive Privilege. Executive privilege has long been part of Anglo‐Saxon jurisprudence and American constitutional history.In 1792, President George Washington, citing the constitutional separation of powers, denied a congressional request for access to papers relevant to General Arthur St. Clair's defeat by Indian forces in Ohio. Three years later, Washington withheld documents pertaining to the negotiations that resulted in Jay's Treaty. The nation's third president, Thomas Jefferson, used similar grounds to defy a subpoena issued by U.S. Supreme Court Justice John Marshall during the treason trial of Aaron Burr. More recently, Presidents Harry S. Truman and Dwight D. Eisenhower cited executive privilege—Truman in resisting a 1948 House resolution to turn over executive papers, and Eisenhower in rejecting a Senate demand for access to Defense Department files.

Subsequent Supreme Courts, however, sharply limited the executive‐privilege claim. In U.S. v. Nixon (1974), the Court rejected Richard Nixon's assertion of executive privilege, ruling that his refusal to turn over the Watergate tapes to Federal Judge John Sirica would “gravely impair” the judiciary's role under Article III of the Constitution. More recently, when President Bill Clinton claimed executive privilege in refusing to provide Congress with documents relating to activities of the White House Travel Office, the Supreme Court upheld a subpoena demanding the notes of relevant conversations between First Lady Hillary Clinton and White House attorneys. Moreover, in Clinton v. Jones (1998), a sexual‐harassment case against the president, the Court unanimously required Clinton, while still in office, to answer civil lawsuits brought against him. As Justice John Paul Stevens noted, the president, like all other citizens, “is subject to judicial process in appropriate circumstances.”

In 2004 President George W. Bush, citing executive privilege, initially refused to permit National Security Advisor Condoleezza Rice to testify in public and under oath before the bipartisan blue-ribbon panel investigating the intelligence failures preceding the terrorist attacks of September 11, 2001. Under growing pressure Bush relented and permitted Rice to testify, but insisted that this should not be considered a precedent for the future.
See also Federal Government, Executive Branch: Overview; Federal Government Executive Branch: The Presidency; Federal Government, Judicial Branch.

Bibliography

Raoul Berger , Executive Privilege: A Constitutional Myth, 1974.
Stanley I. Kutler , The Wars of Watergate, 1990.

Herbert S. Parmet

; Updated by

Paul S. Boyer