Executive Privilege

Executive privilege, while not expressly named in the U.S. Constitution, is an ever-expanding principle. It primarily applies to presidents and their advisers, ensuring candor in the decision-making process.  

Executive privilege is a sometimes controversial legal doctrine that allows presidents of the United States to withhold certain information. 

For example, let's say Congress asks a sitting president for detailed notes on a diplomatic mishap. The president could invoke executive privilege and refuse to turn over the notes. The courts may get involved to settle the dispute.

Although this is a fictional example, it reflects the conflicts that can arise between our federal government's executive, judicial, and legislative branches.

This article discusses:

  • The development of executive privilege
  • Who can use executive privilege
  • The limitations of executive privilege
  • How executive privilege contributes to the separation of powers

But first, what does the Constitution say about executive privilege?

Where is Executive Privilege in the Constitution of the United States?

Executive privilege is not explicitly granted by the U.S. Constitution. It is, instead, based on interpretations of Article II, Section 2. This portion of the Constitution states:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Presidents typically invoke executive privilege for the following reasons:

  • Protecting their subordinates in offensive or defensive litigation
  • Refusing congressional calls for papers
  • Preserving executive power

The invocation of executive privilege will look different depending on the factual circumstances. Consider the following scenarios

  • Congress may request documents from the president under its investigatory powers to oversee executive branch actions or to impeach members of executive departments or other officers of the United States.
  • Private individuals may seek documents from the president in civil litigation.
  • Prosecutors may seek documents from the president in a criminal action.

In these scenarios, the president may invoke executive privilege to withhold information from these parties. 

The president's power of executive privilege aims to protect them from requests that may interfere with their official duties as commander in chief. But, the scope of executive privilege has evolved through the Supreme Court's interpretation of constitutional law.

The Development of Executive Privilege

Executive privilege has a long history in the United States of America, going back to the earliest days of our nation. During his 1807 trial for treason, Aaron Burr attempted to compel then-President Thomas Jefferson to provide certain documents to support his defense. 

United States v. Burr

Chief Supreme Court Justice John Marshall presided over the case. At that time, Supreme Court justices also took turns hearing cases in the lower federal courts, and Marshall was the presiding federal judge in Virginia.

Two guiding principles emerged from United States v. Burr:

  • Presidents are not required to hand over requested documents.
  • However, courts can request relevant documents from the executive branch. 

Ultimately, Justice Marshall issued a subpoena, and Jefferson released some documents. Burr was found not guilty of treason.

This case laid the groundwork for executive privilege. A later case, United States v. Nixon, helped officially establish it as a modern presidential power.

United States v. Nixon

In United States v. Nixon, a special prosecutor issued a subpoena to former President Richard Nixon, seeking tapes of Oval Office recordings related to the investigation into the 1972 Watergate break-in. President Nixon refused to fully comply, and the U.S. Court of Appeals for the District of Columbia ordered him to turn the tapes over to the special counsel. 

Nixon and the special counsel appealed to the U.S. Supreme Court, where Nixon's attorney tried to assert Nixon's absolute executive privilege. Nixon argued that:

  • Executive privilege was necessary to protect conversations between high-level government officials and their advisors, including heads of departments. 
  • Executive privilege rested on the separation of powers doctrine.

The Court confirmed the need for executive privilege because it ensures that a president and their advisors can freely explore alternatives during the decision-making process. The Court was clear that presidents have an expectation of confidentiality in their conversations and correspondence.

The Nixon Court further recognized that presidential communications have a presumptive privilege fundamental to operating the government and is also rooted in the separation of powers doctrine under our Constitution.

Although the Court clarified the need for executive privilege, it also found that it does not extend to subpoenas issued in criminal or civil cases. Therefore, Nixon could not invoke executive privilege to avoid a subpoena.

Who Can Use Executive Privilege?

Although the president of the United States typically invokes executive privilege, other executive branch members may also use it. Examples include the vice president, cabinet members, and executive agencies such as the Federal Trade Commission (FTC) or the Environmental Protection Agency (EPA).

Executive Agencies

Private parties, such as government watchdog groups or investigative journalists, may seek information from the federal government for purposes such as:

United States v. Reynolds offers an excellent example of a plaintiff seeking information in a lawsuit against the government. This case was filed in the aftermath of a plane crash involving a military aircraft in 1948.

The widows of civilians onboard the flight filed a claim under the Tort Claims Act and requested the Air Force's accident report as well as the statements of surviving crew members. 

The Secretary of the Air Force asserted a claim of privilege and noted that the "aircraft and its personnel were engaged in a highly secret mission." The District Court rejected their argument and found in favor of the plaintiffs. The Court of Appeals affirmed the lower court's decision, and the government appealed to the Supreme Court. 

SCOTUS found in favor of the government. The Court recognized a "well-established" privilege against revealing military secrets. The 6-3 majority held that courts must determine whether the circumstances of the claim of privilege are reasonable without forcing any disclosures that would jeopardize national security.

Executive Privilege and the Freedom of Information Act

Federal agencies often invoke a specific type of executive privilege against Freedom of Information requests. This is known as the "deliberative process" privilege.

The Freedom of Information Act of 1967 (FOIA) gives private individuals like you the right to access records from any federal agency. This gives you and other American citizens the right to stay informed about their government. 

For example, you could request documents from the EPA related to their regulation of drinking water in your community. Under FOIA, the EPA must disclose your requested information unless it falls under one of the nine FOIA exemptions. 

Exemption 5 covers privileged interagency communications protected by the deliberative process privilege. This privilege covers "pre-decisional materials" developed as part of the decision-making process in federal agencies.

The U.S. Department of Justice has noted that Exemption 5 helps avoid restraining candor needed for "optimum decision-making inside government agencies." Other exemptions include, but are not limited to:

  • National security
  • Trade secrets
  • Disclosures prohibited by a different federal law

Other executive branch officials often try to use executive privilege to protect their communications. But there's no guarantee a court will agree the privilege applies.

Presidential Advisors

Presidential advisors have attempted to use executive privilege in response to Congressional subpoenas — but with little success.

In Committee on the Judiciary v. Donald McGahn, the White House directed former White House counsel Donald McGahn to ignore a Congressional subpoena for testimony. The White House claimed that McGahn had absolute immunity from compelled congressional testimony.

Although McGahn did not directly assert executive privilege, the court noted that he could plausibly do so in response to some of the Committee's questions.

More recently, several former advisors to former President Donald J. Trump attempted to invoke executive privilege in response to Congressional subpoenas. These former advisors had mixed results.

January 6 Select Committee Subpoenas

Following the January 6, 2021 attack on the U.S. Capitol, the House of Representatives established a Select Committee to investigate the event. The January 6 Committee issued subpoenas to three of Trump's former advisors:

  • Mark Meadows
  • Peter Navarro
  • Daniel Scavino

Each of these former advisors attempted to invoke executive privilege to avoid compelled testimony. Each experienced different outcomes. Trump gave letters to Scavino and Meadows advising them to invoke executive privilege. But Navarro had no such letter.

Congress recommended that the Department of Justice (DOJ) charge all three with contempt of Congress. The DOJ declined to prosecute Scavino and Meadows, but it did indict Navarro for contempt of Congress. Notably, Scavino and Meadows each tried to negotiate testifying before Congress. Navarro made no such attempts.

Navarro was unsuccessful in his attempt to use executive privilege in United States v. Navarro. Dr. Navarro was on trial for contempt of Congress. Unlike Scavino and Meadows, Navarro did not have a letter from the former president directing him to assert executive privilege.

A federal district judge found Navarro had no evidence to support his claim of executive privilege. Navarro was ultimately sentenced to four months in prison for contempt of Congress.

What are the Limitations of Executive Privilege?

Executive privilege is not absolute or guaranteed. It is a qualified privilege. Claims of executive privilege are presumed valid. The party seeking documents or testimony must demonstrate that the privilege does not apply. These disputes typically end up in court, so, ultimately, a judge decides.

The Supreme Court has long recognized that the public "has a right to every man's evidence." They have held that the president may have to testify or produce documents in criminal proceedings. This dates back to Burr, as outlined above. The Court concluded that then-President Thomas Jefferson could be subject to court-issued subpoenas. 

Chief Justice Marshall also noted in Burr that, unlike the British royalty, the president must adhere to the general provisions of the Constitution. Presidents are not monarchs. They are not completely immune from state criminal subpoenas. 

Trump v. Vance illustrates this principle.

Trump v. Vance

In Trump v. Vance, then-President Trump sued Cyrus Vance, then-District Attorney of the County of New York, over a subpoena issued to Trump's accounting firm, Mazars USA, LLP. The subpoena sought financial records related to Trump and his businesses.

Trump argued that, as a sitting president, he enjoyed absolute immunity from state criminal processes under Article II and the Supremacy Clause of Article VI. Even when he was acting in his personal capacity.

SCOTUS disagreed, holding that Article II and the Supremacy Clause did not require a heightened standard for issuing a state criminal subpoena to a sitting President.

In doing so, the Vance Court noted two important things:

  • For two centuries since Burr, U.S. presidents have accepted the precedent that the Chief Executive is subject to subpoenas and have "uniformly agreed to testify when called in criminal proceedings." 
  • A "properly tailored criminal subpoena" will not usually hamper the performance of a President's constitutional duties. 

Relying on Burr and Nixon, the Court reasoned that 200 years of precedent established the following:

Presidents and their official communications must yield to judicial processes. This is true even when the President is under investigation.

Can a President Use Executive Privilege After They Leave Office?

Yes, former presidents can assert executive privilege after they leave office. Nixon v. Administer of General Services established this principle. In this case, former President Nixon challenged a request for presidential records. Although the Supreme Court ruled against him, this case established the President's right to assert executive privilege.

Trump v. Thompson provides another example.

The January 6 Select Committee requested presidential records from the Archivist of the United States under the Presidential Records Act (PRA). The Committee wanted records related to the January 6 attack and Trump's claims of election fraud.

At that time, the Presidential Records Act required the Archivist to notify former presidents and the incumbent president of any document requests.

Trump attempted to exert executive privilege. However, President Joe Biden declined to assert privilege.

Under the PRA, only the incumbent president can uphold a former president's claim of executive privilege. In Thompson, President Biden declined to uphold the privilege. Biden recognized the extraordinary circumstances of January 6, 2021, and Congress's "compelling need" to investigate it.

Trump then filed for a preliminary injunction to prevent disclosure of his records. The Supreme Court ruled against him, reasoning that he did not meet the criteria for injunctive relief.

Executive Privilege and the Separation of Powers

The separation of powers doctrine flows from the enumerated powers conferred on each branch of government in the Constitution. Constitutional law recognizes the following distinct powers:

  • Presidential powers
  • Judicial powers
  • Legislative powers

We've often seen disputes between Congress and presidents over the release of information by presidents to Congressional committees. Congress has the following powers, which can impact investigations and subpoenas for documents or recordings. These powers include, but are not limited to:

  • The power to legislate
  • The power to oversee the execution of legislation
  • The power to check the executive branch concerning corruption and wrongdoing
  • To impeach the president, vice president, and other federal government officials

The Senate Select Committee on Presidential Campaign Activities set up to investigate the Watergate scandal illustrates how Congress can use its investigatory powers to check the executive branch through an investigation.

After learning more about the Watergate scandal through different trials and other investigations, the House Judiciary and the Senate established committees to investigate the Watergate break-ins. These hearings led to the House Judiciary Committee's approval of three articles of impeachment against then-President Nixon.

Presidents often invoke executive privilege in response to Congressional inquiries. Consider Committee on Oversight and Government Reform v. Holder, a 2013 case in which former President Barack Obama exercised his right to assert executive privilege.

Committee on Oversight and Government Reform v. Holder

In this case, the Congressional Committee on Oversight and Government Reform was investigating Operation Fast and Furious. Operation Fast and Furious was a Bureau of Alcohol, Tobacco, and Firearms (ATF) operation to staunch the flow of illegal weapons into the United States.

More specifically, the committee wanted more information on specific alleged tactics. The committee filed a subpoena to compel testimony from former Attorney General Eric Holder.

Holder produced some documents but declined to produce other documents. In a Congressional hearing, a deputy attorney general told the committee that President Obama asserted executive privilege over certain documents. Turning them over, they reasoned, would "reveal the agency's deliberative processes." 

The committee disagreed and sued the Obama administration in federal court. Notably, the committee argued that the assertion of executive privilege was invalid for two reasons:

  • There was no claim that the documents contained advice given to the president 
  • The documents did not touch upon core constitutional functions (of the President)

Holder filed a motion to dismiss the committee's complaint, arguing, in part, that the judicial branch could not review the dispute between the legislative and executive branches. The U.S. District Court for the District of Columbia disagreed. It denied Holder's motion to dismiss, confirming that the court does have jurisdiction to hear interbranch disputes.

Trump v. Mazars USA LLP

More recently, Trump v Mazars USA LLP illustrates Congressional power to gain access to a president's financial records. In Mazars, the House Committee on Financial Services issued subpoenas seeking documentation concerning Trump, his children, and his affiliated businesses from several financial institutions and Trump's personal accounting firm.

Trump and others challenged the subpoenas, arguing they lacked a legitimate legislative purpose and violated separation of powers. Notably, the president did not claim executive privilege for any of the requested records. 

The District Court for the District of Columbia found in favor of the House committee. The Court of Appeals for the District of Columbia affirmed their decision, finding a valid legislative purpose for each subpoena. Trump appealed to SCOTUS. 

The Court reversed and remanded the appellate decision. It held that the lower courts did not consider the "significant separation of powers concerns implicated by congressional subpoenas for the President's information."

The Court acknowledged that each House of Congress (House of Representatives and the Senate) has the power to secure necessary information to legislate, subject to several limitations. These limitations include the following:

  • A congressional subpoena must serve "valid legislative purposes."
  • Congress cannot issue subpoenas to enforce laws because law enforcement is not part of its powers
  • Recipients of congressional subpoenas do not relinquish their constitutional rights and privileges during an investigation.

Can the president challenge a subpoena?

Presidents do have options when facing criminal prosecution. These options include the following:

  • The president can challenge subpoenas issued in bad faith or are overly broad
  • The president can challenge the timing and scope of the subpoena (it must yield to the nature of the office of the president--i. e., it must avoid significant interference with the president's official duties)
  • The president can raise a claim of executive privilege in certain presidential communications

The executive privilege doctrine helps maintain a separation of powers and can expand depending on the underlying circumstances.

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