The right of the president of the United States to withhold information from Congress or the courts.
Historically, presidents have claimed the right of executive privilege when they have information they want to keep confidential, either because it would jeopardize national security or because disclosure would be contrary to the interests of the executive branch.
The Constitution does not specifically enumerate the president's right to executive privilege; rather, the concept has evolved over the years as presidents have claimed it. As the courts have ruled on these claims, their decisions have refined the notion of executive privilege and have clarified the instances in which it can be invoked. The courts have ruled that it is implicit in the constitutional separation of powers, which assigns discrete powers and rights to the legislative, executive, and judicial branches of government. In reality, however, the three branches enjoy not separate but shared powers, and thus are occasionally in conflict. When the president's wish to keep certain information confidential causes such a conflict, the president might claim the right of executive privilege.
The term executive privilege emerged in the 1950s, but presidents since george washington have claimed the right to withhold information from Congress and the courts. The issue first arose in 1792, when a congressional committee requested information from Washington regarding a disastrous expedition of General Arthur St. Clair against American Indian tribes along the Ohio River, which resulted in the loss of an entire division of the U.S. Army. Washington, concerned about how to respond to this request and about the legal precedent his actions would set, called a cabinet meeting. Although no official record was kept of the proceedings, thomas jefferson described the deliberations in his diary. The participants, Jefferson wrote, concluded that Congress had the right to request information from the president and that the president "ought to communicate such papers as the public good would permit & ought to refuse those the disclosure of which would injure the public." In the case at hand, they agreed that "there was not a paper which might not be properly produced," so Washington provided all the documents that Congress had requested. This event, though notable as the first recorded deliberation concerning executive privilege, did not carry precedential value until after 1957, when Jefferson's notes were discovered. In 1958, Attorney General William P. Rogers cited Jefferson's remarks as precedent for an absolute presidential privilege. Legal scholar Raoul Berger declaimed Rogers's arguments as "at best self serving assertions by one of the claimants in a constitutional boundary dispute." Instead, Berger argued, Washington's willingness to turn over the requested documents shows his recognition of Congress's right to such materials.
In subsequent incidents, however, Washington and his successors did choose to withhold requested information from Congress, citing various reasons. In 1794, for example, the Senate requested from Washington the correspondence of Gouverneur Morris, the U.S. ambassador to France, who was suspected of aiding the French aristocrats against the revolutionaries despite the United States' official stance of neutrality. Washington provided the letters, but he censored them first, acting on the advice of officials such as Attorney General william bradford, who said that the president should "communicate to the Senate such parts of the said correspondence as upon examination he shall deem safe and proper to disclose: withholding all such, as any circumstances, may render improper to be communicated." The following year, Washington refused to provide the House with information relating to Ambassador John Jay's negotiation of a treaty with Great Britain, arguing that the House had no constitutional right to participate in the treaty making process and so had no right to request materials associated with it.
The judiciary, like Congress, can also request information from the president. When aaron burr was indicted on charges of treason, for example, both Congress and the judiciary asked President Jefferson to provide correspondence from General James Wilkinson, a Burr confidant and aide. Jefferson argued that it was wrong to ask him to provide private letters, written to him, containing confidential information. Chief Justice john marshall, presiding over the Burr trial, United States v. Burr, 25 Fed. Cas. 187, 191 (C.C. Va. 1807), did not ultimately force Jefferson to turn over each requested document, but he did maintain the right of the judiciary to request such information from the president, writing that "the President of the United States may be … required to produce any paper in his possession" and adding that "[t]he occasion for demanding it ought, in such a case, [to] be very strong, and to be fully shown to the court before its production could be insisted on."
As the power of the president's office grew over the nineteenth and twentieth centuries, presidents attempted more frequently to use executive privilege to shield themselves and their subordinate officials from investigation. In 1836, for example, a House committee requested personnel rosters and salary information from President andrew jackson. He declined to fulfill the request, stating that he would "repudiate all attempts to invade the just rights of Executive Departments, and of the individuals composing the same." Similarly, in 1909, President theodore roosevelt took personal possession of federal trade commission documents requested by Congress, claiming immunity for the materials since they were under presidential control. In both cases, Congress failed to pursue its investigations.
During the presidency of dwight d. eisenhower, executive privilege underwent three major developments. First, in the area of national security, the Supreme Court ruled in United States v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727 (1953), that the military may refuse to divulge requested information when national security is at stake. While warning that such requests could not be simply left to the "caprice of executive officers," the Court maintained that there would be times when "there is a reasonable danger that the compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged."
The second development in the use of executive privilege became known as the candid interchange doctrine. In an attempt to shield the executive branch from the bullying investigative tactics of Senator joseph r. mccarthy, President Eisenhower directed that executive privilege be applied to all communications and conversations between executive branch employees; without the assurance of confidentiality, he claimed, they could not be completely candid. This doctrine marked a tremendous change in the scope of executive privilege, extending it from the president and the president's top advisers to the myriad offices and agencies that make up the executive branch.
Finally, the third development in executive privilege resulted from Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939, 141 Ct. Cl. 38 (Cl. Ct. 1958). In this case, Kaiser
sought documents containing executive branch employees' opinions regarding the sale of aluminum manufacturing plants. The court ruled that it was ultimately up to the courts "to determine executive privilege in litigation," adding that "the privilege for intradepartmental advice would very rarely have the importance of diplomacy or security." The opinion in this case contains the first recorded use of the phrase executive privilege.
The use of executive privilege decreased during the 1960s, but it became the crux of the constitutional crisis created by watergate, a series of scandals involving President richard m. nixon and his associates. When Congress sought to obtain White House tapes containing Oval Office conversations, Nixon refused to turn them over, claiming that the tapes were subject to absolute executive privilege and asserting that the judiciary had no authority to order their production or inspection. Eventually the dispute reached the Supreme Court, where, in united states v. nixon, 418 U.S. 683, 94 S. Ct. 3090, 41L. Ed. 2d 1039 (1974), the Court ruled against Nixon. While acknowledging the importance of the president's claims, the Court stated that "neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances." In its opinion, therefore, the Court explicitly recognized the president's authority to assert executive privilege but ruled that the use of executive privilege is limited, not absolute. Furthermore, the Court maintained that the judiciary, not the president, has the power to determine the applicability of executive privilege. While the Court affirmed the use of executive privilege, therefore, it determined that in this case, the right of the U.S. people to full disclosure outweighed the president's right to secrecy. This momentous decision soon led to Nixon's resignation from the office of president.
Executive branch officials under presidents william jefferson clinton and george w. bush have sought to limit dissemination of information through executive privilege, though these efforts were often unsuccessful. When Clinton was investigated by Independent Counsel kenneth w. starr about whether Clinton lied in a deposition regarding an affair with a former White House intern, Starr subpoenaed secret service agents to testify before a grand jury about Clinton's actions. Several agents refused to testify. This forced Starr to file a motion in the U.S. District Court for the District of Columbia to compel their testimony. The agents asserted they were protected by a "protective function" privilege that allowed them to conceal what they observe in the protection of the president.
U.S. District Judge Norma Holloway Johnson declined to recognize the privilege, holding that there was no support for it in the U.S. Constitution, federal statute, or the common law. Johnson cited federal statutes that require the president to accept Secret Service protection and require executive branch personnel, which includes Secret Service agents, to report criminal activity that they observe. The absence of a protective function privilege in those statutes suggested that Congress did not intend to create one. She rejected the argument that without the privilege, presidents would push away their protectors.
Officials in the Bush administration have also been criticized for failing to release information in an investigation of an energy taskforce led by Vice President Richard B. Cheney. A federal judge ordered the release of the information under the freedom of information act, but administrators stalled when delivering the information. Although the case against Cheney's energy group was later dismissed, several liberal and conservative interest groups have criticized the Bush administration for its policy of controlling information. In October 2001, Attorney General john david ashcroft issued a memorandum to government agencies suggesting that the u.s. justice department would defend an agency if it chose to withhold certain records requested through the FOIA.
Aman, Alfred C., Jr., and William T. Mayton. 2001. Administrative Law. 2d ed. St. Paul, Minn.: West.
Pierce, Richard J., Jr. 2002. Administrative Law Treatise. 4th ed. New York: Aspen Law & Business.
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
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.
The right of the president of the United States to withhold information from Congress or the courts.
White House Visitor Logs are Public
Presidents of the United States have claimed that certain information is privileged and cannot be disclosed to Congress or to the public. The administration of George W. Bush has asserted executive privilege a number of times when Congress has sought documents or testimony from high-ranking Executive Branch officials. The Bush Administration successfully turned away a lawsuit that sought information about which energy company executives met with Vice President Richard Cheney to discuss energy policies. In 2008 two pending lawsuits proceeded that sought White House visitor logs. One action seeks to determine how often several conservative religious leaders visited the White House for meetings. A second action seeks to determine the number of times Jack Abramoff, a corrupt and now convicted lobbyist, visited the White House. In both cases the Bush Administration asserted executive privilege, arguing that the logs were not public records. Moreover, the White House used a 2006 agreement between it and the Secret Service to bolster its argument.
In the first case the Citizens for Responsibility and Ethics in Washington (a liberal advocacy group) asked to see the visitor logs to determine how many times the Rev. Jerry Falwell, Focus on the Family's James Dobson, and other conservative religious leaders met with the Bush Administration. Under the federal Freedom of Information Act (FOIA), citizens are entitled to all public records unless the government can assert an exception. The White House declined to release the logs, claiming they are presidential documents. (During the Clinton Administration the visitor logs were used by political opponents to document the visits of political donors, pardon-seekers, and former White House intern Monica Lewinsky.) This argument, which had not been made by previous administrations, was buttressed by a 2006 agreement between the White House and the Secret Service. Under this agreement the Secret Service, which maintains the logs, turns over the logs to the White House, which are labeled presidential documents. This label means that the logs cannot be released under the FOIA. However, this agreement was not made until after the litigation in this case had begun.
After the White House asserted its FOIA exception and denied release of the logs, the advocacy group asserted its right under FOIA and appealed the decision to federal district court . Judge Royce Lamberth ruled in December 2007 that the visitor logs were public records. The judge grounded the decision on the fact that the Secret Service and not the White House directly maintained the logs. Lamberth stated that “Because the Secret Service creates, uses and relies on, and stores visitor records, they are under its control. Knowledge of these visitors would not disclose presidential communications or shine a light on the president's or the vice president's policy deliberations.” The fact that the 2006 agreement between the White House and the Secret Service came after the litigation in this case had begun made it, in Lamberth's view, “self-serving.”
The Bush Administration appealed the order to the U.S. Circuit Court of Appeals for the District of Columbia. The three-judge appeal panel conducted oral argument in April 2008. The government's lawyer argued that releasing lists of visitors would hurt the president's right to seek advice privately and confidentially. Though the White House called the logs presidential documents the appeals panel was skeptical. One judge noted that the only information given was the name of the person visiting the White House. A person could stand outside the White House and observe who goes in and who goes out. Another judge raised concerns about giving the president blanket powers to make records of White House agencies presidential documents that are currently public records. Moreover, persons who visit the White House, such as social planners and caterers, would be treated the same as persons who give advice to the president privately.
The appeals court recognized the need for the president to receive advice privately and suggested that a compromise should be reached by both sides that balanced the rights in question. However, the government said it would be impossible to screen the visitor lists to determine which meetings might be sensitive. Though the court did not immediately rule, whatever decision that it made would certainly be appealed to the Supreme Court.
EXECUTIVE PRIVILEGE, refers to the right of the executive branch to withhold information from Congress or the judiciary. Although presidents and executive cabinet members often assert a right to executive privilege, this right does not explicitly appear within the text of the U.S. Constitution. Nevertheless, members of the executive branch have claimed that executive privilege is an implied power under Article II and that it is consistent with the principle of Separation of Powers.
The first assertions of executive privilege occurred during the presidency of George Washington. In 1792 the House of Representatives requested information from the Washington administration concerning the military defeat of Major General Arthur St. Clair. Even though the Washington administration did give the requested papers to the House, Washington asserted he had the right to refuse to disclose information that would be harmful to the public. Thus even though Washington cooperated, he set the precedent that at certain times presidents could withhold information.
In 1796 Washington refused to provide the House with requested information concerning the Jay Treaty, pointing out that the House does not play a constitutional role in the treaty-making process. Washington noted, however, that if the House had requested information concerning an impeachment, he would be required to supply such information to the House because of its constitutional responsibilities in the impeachment process.
The federal judiciary had its first opportunity to offer its understanding of executive privilege in United States v. Burr (1807). The case raised the question of whether or not a federal court could require the president to hand over documents to be used in a trial, that is, issue a subpoena. Chief Justice John Marshall ruled that federal courts had the right to issue subpoenas to presidents.
Even though the judiciary recognized that the executive branch is not above the law, Supreme Court justices noted in United States v. Reynolds (1953) that presidents might be able to withhold from the public information concerning military and foreign relations to protect national security. However, the Court believed a president did not possess an absolute right to executive privilege simply through the claim that national security interests were at stake.
The limited nature of executive privilege was expressed again in the landmark case of United States v. Nixon (1974). President Richard Nixon refused to comply with a subpoena requiring him to hand over to a federal court audiotapes that were believed to offer evidence on the executive branch's alleged involvement in the 1972 Watergate break-in. Nixon argued that he had the right to withhold the material to protect the privacy of his communications with his advisers. In a unanimous opinion the Supreme Court recognized that a constitutional right to executive privilege did exist. However, the Court rejected Nixon's claims and required him to produce the tapes for evidence in the investigation. Chief Justice Warren Burger explained that the president was entitled to great deference, particularly on issues of national security. Nonetheless, he emphasized that such deference was conditional and dependent on circumstance. While Nixon argued separation of powers allowed for executive privilege, the justices noted that the system of checks and balances prohibited any absolute claims of executive privilege.
Berger, Raoul. Executive Privilege: A Constitutional Myth. Cambridge, Mass.: Harvard University Press, 1974.
Breckenridge, Adam Carlyle. The Executive Privilege: Presidential Control over Information. Lincoln: University of Nebraska Press, 1974.
Rozell, Mark J. Executive Privilege: The Dilemma of Secrecy and Democratic Accountability. Baltimore, Md.: Johns Hopkins University Press, 1994.
See alsoPresidents and Subpoenas .