Executive Privilege Until about 1960 executive privilege was referred to as “presidential discretion to withhold information” or by some similar term. Because there is no textual underpinning in the Constitution for the claim to executive privilege, which presidents have based on notions of
separation of powers, critics as diverse as former Undersecretary of State George Ball and legal historian Raoul Berger have labeled it “a constitutional myth.” Still, the issue has been contested since George
Washington's administration, and it is difficult to see why this matter is different from issues such as presidential removal power or the
congressional power of investigation. Given the sparseness of language in many provisions of the Constitution, principles often emerge from a combination of litigation and custom.
Until recent decades, when executive privilege controversies have arisen more frequently, presidential discretion to withhold information was seldom differentiated from the presidential claim of discretion not to appear—
executive immunity—and in real‐life situations the two are often intertwined. Theoretically, both claims of executive prerogative affect relations with the courts and legislature, but executive control of prosecution tends to minimize problems at the judicial level while the rise of routine investigations in Congress has thrust questions of executive privilege to the forefront. Until the twentieth century, virtually all disputes were resolved by mutual accommodation, but in recent years the judiciary has increasingly become the decision maker. Of course, most matters are still resolved by the practical politics of the situation.
There is an underlying dynamic in most claims of privilege. In the initial stages the executive has a virtual monopoly of information on the case so a temptation exists to overuse claims of privilege. When controversy persists, however, the administration's advantages wane. The public assumes dark deeds are being covered up. As informants and information slowly accumulate, politics tends to force executive revelations. The presidency loses on the core issue and reveals the requested information, but looks bad in rejecting candor from the beginning. At the same time, the result is often a Pyrrhic victory for Congress or the courts that engenders a loss of public confidence in all political institutions. Aware of this history and politically attuned, both sides usually strive for some reasonable outcome.
Several core notions are hidden behind the label of executive privilege. First, presidents have insisted that they have a need for confidential, candid advice from subordinates and that too‐easy public revelation of that advice will destroy these vital relationships. This need was acknowledged by Chief Justice John
Marshall in
Marbury v. Madison (1803) and has historically been treated tenderly both by Congress and the courts. Any claim to an absolute privilege seems undercut by ex‐presidents' and ex‐subordinates' growing propensity to write “kiss‐and‐tell” memoirs immediately upon leaving office. Second, presidents sometimes claim executive privilege by virtue of reasons of state, insisting that military and foreign‐affairs secrets should not be divulged. Both courts and congressional committees have developed techniques of limited,
in camera, inspection of secret materials by trusted congressional leaders or judges, but there are limits to this as well. Third, the claim is sometimes based on practical necessity, as when, for example, the identities of spies or informers may need to be protected. The validity of the argument from practical necessity is historically well founded: The issue first arose when President Washington withheld information on the Jay Treaty from the House of Representatives, and congressional leader James
Madison recognized that the untimely disclosure of otherwise pertinent information could jeopardize national interests.
Since the administration of Dwight D. Eisenhower, presidents have repeatedly pressed for an absolute privilege—but they have suffered an almost uniform record of rebuffs in the courts. Nevertheless, strong conditional privilege rights have been established. Both politically and legally, the executive has had to accommodate the functional claims of the other branches, which have their own valid needs to obtain information.
At one extreme, such needs arise during the process of confirmation of presidential subordinates. The Senate's power to reject a nomination makes it imperative for the president to share even the most confidential information in some way if the Senate insists. When a congressional committee (authorized by the entire chamber) litigates to obtain information, the courts have insisted on the judiciary's right to decide and frame the conditions of the investigation. In general, courts are highly deferential to executive claims; even the series of cases involving President Richard
Nixon tended to acknowledge the normal presumption that the executive withholding was correct and the burden of proof was on the party challenging such a decision. In criminal matters the courts will accept executive claims, but if a defendant makes a reasonable showing that confidential material might significantly affect the case, the court may force the government to choose between confidentiality and giving up the prosecution. When the officeholder is the criminal defendant, the claim of confidentiality is at its weakest. Under the decisions in
United States v.
Nixon (1974) and
Nixon v. Administrator of General Services (1977), the courts must weigh the advantages and disadvantages of disclosure, but clearly officeholders do not have the last word about confidentiality involving colleagues, and least of all about themselves. The case for executive privilege is strongest in private civil suits, although even there the courts retain the last word.
See also
Appointment and Removal Power;
Foreign Affairs and Foreign Policy.
Samuel Krislov
