EXECUTIVE PRIVILEGE

Executive privilege refers to a right of the chief executive to refuse to produce documents within his control in response to a demand from either the legislative or judicial departments of the national government. There would seem to be no question that the chief magistrate need not respond to such demands from departments of state governments. Raoul Berger has asserted that "executive privilege is a myth," a creature of the Presidents who have asserted this claim to immunity without foundation in the Constitution. Although the Constitution does provide for legislative privilege, there are no words in the Constitution on which to base any such executive privilege. Nevertheless, the Supreme Court, in united states v. nixon (1974), wrote executive privilege into the Constitution on the grounds that it inheres in the notion of separation of powers that is immanent in our basic document:

The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to these values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.

The privilege as created by the Court in Nixon is not, however, an absolute one. Interests of the other branches of government may override the presidential interest in the privilege. And in Nixon the executive privilege was held subordinate to the claim of a grand jury for evidence "that is demonstrably relevant in a criminal trial." Thus, the weight of the privilege to withhold information differs according to its function. It is at its lowest force when it "is based only on the generalized interest in confidentiality." It is at its strongest when the claim is based on the ground of "military or diplomatic secrets."

The Supreme Court's constitutional doctrine of executive privilege is still in its nascency. The Court, in Nixon, particularly eschewed passing on "the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, [or] with that between the confidentiality interest and congressional demands for information, [or] with the President's interest in preserving state secrets." In the absence of constitutional language, the constitutional meaning of executive privilege depends totally on judicial creation, for "it is the province and duty of this Court "to say what the law is."

Prior to the Nixon decision, the question of executive privilege, especially as it related to demands of Congress on the executive branch, was resolved in the political rather than the judicial arena. It was a contest of wills, with each side exerting its own powers and its own claims on public opinion, which was frequently dispositive of the issue. The strongest power of the Congress lies in its control over the purse and its threat to cut off funding from programs as to which Congress makes inquiry and as to which the executive branch declines to produce the documents sought. The greatest force on the side of the executive branch lies in its capacity to delay acquiescence, since most executive privilege questions become moot or stale through the passage of time.

The problem has a long history in this country, going back to the time that President george washington declined to deliver to the House of Representatives documents relating to jay ' streaty, on the grounds that it was none of the business of the House to participate in the treaty process and that all relevant information had, indeed, been delivered to the Senate, whose job it was to advise and consent on the content of treaties. When in the Burr case john marshall subpoenaed communications in the hands of President thomas jefferson, Jefferson decided which he would and which he would not provide. In Burr the judiciary proved helpless against the adamancy of the President to withhold documents, although the Court might have tried to invoke the contempt power.

Since the investigatory or oversight power of Congress is itself an implied rather than a granted power, its claim to access to presidential papers generally rests on as weak a reed as does the President's claim to immunity from producing the information. Both are implicit rather than express constitutional rights. But the case differs where Congress, particularly the House, is investigating the question of misbehavior of executive branch officials. The Congress is particularly charged by the impeachment provisions of the Constitution with the duty of "throwing the rascals out." And surely they must have access to relevant information to determine whether an executive official, be it the President himself, has committed "high crimes and misdemeanors" for which he might be impeached and convicted. But the problem of executive privilege has not arisen in the impeachment context. Rather the impeachment power is used to justify a general congressional power of investigation.

It is with regard to Congress's legislative duty to secure knowledge on which to base its laws or to assure itself that the President is, indeed, engaged in the faithful execution of the laws which Congress has enacted that "executive privilege" problems tend to arise. History provides us with no doctrinal answer to the correct meaning of executive privilege here. Most are agreed that the privilege can be claimed only by the President himself or by a government official at the command of the President. It is not to be invoked even by the vice-president or the secretary of state except through the President. There is little other consensus. Impeachable offenses aside, the privilege is strong where, as the Court noted, it is concerned with military or state secrets. Beyond this, history shows only that the balance between the two constitutional claims, Congress's to be able to perform its duties and the President's to perform his own, has been resolved on an ad hoc basis, with the President having the greater ability to manipulate public opinion, and Congress being able to invoke only the time-consuming processes of contempt and fiscal restraints.

Now that the Supreme Court seems to have made the question of executive privilege a judicial rather than a political one, some further elucidation may be forthcoming. But, except in times of crisis such as the Watergate affair, the mills of the courts, like the mills of the gods, grind so very slowly that they may prove inadequate to provide greater definition to the amorphous concept of executive privilege. This is especially the case since the Court recognized the privilege as a conditional one and not an absolute one, requiring balancing by a judicial arbiter without any special competence to perform the task. It may be predicted, however, that where the conflict is between the judicial and executive branches, as it was in the Nixon case, the judicial branch is more likely to prevail, at least in a criminal case or one in which the government itself is seeking the information. But, as between Congress and the President, the Court is likely to be found where it is usually found, aligned with the executive branch.

Executive privilege could cover immunities other than the right to reject a demand for information from another branch. In the Nixon period, the question arose, speculatively, whether a President of the United States could be arrested, indicted, and tried for crime while still in office. That a successful impeachment would leave the person charged with no immunity to arrest, indictment, and trial is made clear by the words of the Constitution itself. On the other hand, it says nothing about executive immunity while in office. Without judicial precedent or judgment, there appeared to be agreement that the President of the United States and only the President must be immune from interruption of his duties while he holds office, subject only to the necessity for responding to impeachment charges. There is no moment when the President is not on duty, even while on vacation. This immunity, whether termed executive privilege or not, derives from the implications of the Constitution much more readily than his right to refuse to produce documents, which need not interrupt his presidential obligations.

One must assume, too, that the President, like everyone in the nation, can claim the right against self-incrimination both in Congress and in the courts. The practical effects on the electorate of such a claim make it highly unlikely that it will ever be invoked. And again, the privilege not to incriminate himself is not the executive privilege as that term is generally used.

The contours of executive privilege remain hard to define, and certainty is not likely to come soon, if ever.

Philip B. Kurland
(1986)

Bibliography

Berger, Raoul 1974 Executive Privilege: A Constitutional Myth. Cambridge, Mass.: Harvard University Press.

Kurland, Philip B. 1978 Watergate and the Constitution. Chicago: University of Chicago Press.

United States Senate, Judiciary Committee, Subcommittee on Separation of Powers 1971 Executive Privilege: The Withholding of Information by the Executive. 92nd Congress, 1st session. Washington, D.C.: Government Printing Office.

——, Subcommittee on Administrative Practice and Procedure and Separation of Powers, and Committee on Government Operations, Subcommittee on Intergovernmental Relations 1973 Freedom of Information: Executive Privilege; Secrecy in Government. 3 Vols. 93rd Congress, 1st session. Washington, D.C.: Government Printing Office.