When and How Executive Privilege Can Be Used
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
Presidents have more than once had occasion to stand in a protective relation to their subordinates, assuming their defense in litigation brought against them1 or pressing litigation in their behalf,2 refusing a congressional call for papers which might be used, in their absence from the seat of government, to their disadvantage,3 challenging the constitutional validity of legislation deemed detrimental to their interests.4 Presidents throughout our history have attempted to spread their own official immunity to their subordinates by resisting actions of the courts or of congressional committees to require subordinates to divulge communications from or to the President that Presidents choose to regard as confidential. Only recently, however, has the focus of the controversy shifted from protection of presidential or executive interests to protection of the President himself, and the locus of the dispute shifted to the courts.
Following years in which claims of executive privilege were resolved in primarily interbranch disputes on the basis of the political strengths of the parties, the issue finally became subject to judicial elaboration. The doctrine of executive privilege was at once recognized as existing and having a constitutional foundation while at the same time it was definitely bounded in its assertion by the principle of judicial review. Because of these cases, because of the intensified congressional-presidential dispute, and especially because of the introduction of the issue into an impeachment proceeding, a somewhat lengthy treatment of the doctrine is called for.
Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President, either in the effectuation of its investigatory powers to oversee the conduct of officials of the Executive Branch or its power to impeach the President, Vice President, or civil officers of the Government. Private parties may seek information in the possession of the President either in civil litigation with the Government or in a criminal proceeding brought by government prosecutors. Generally, the categories of executive privilege have been the same whether it is Congress or a private individual seeking the information, but it is possible that the congressional assertion of need may over-balance the presidential claim to a greater degree than that of a private individual. The judicial precedents are so meager that it is not yet possible so to state, however.
The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the executive branch from a compulsory process of the legislative or judicial branch of the government. The Constitution does not expressly confer upon the Executive Branch any such privilege, but it has been claimed that the privilege derives from the constitutional provision of separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution. Historically, the assertion of the doctrine has been largely confined to the areas of foreign relations, military affairs, pending investigations, and intragovernmental discussions.5 During the Nixon Administration, the litigation involved, of course, the claim of confidentiality of conversations between the President and his aides.
Private Access to Government Information
Private parties may seek to obtain information from the government either to assist in defense to criminal charges brought by the government or in civil cases to use in either a plaintiff's or defendant's capacity in suits with the government or between private parties.6 In criminal cases, a defendant is guaranteed compulsory process to obtain witnesses by the Sixth Amendment and by the due process clause is guaranteed access to relevant exculpatory information in the possession of the prosecution.7 Generally speaking, when the prosecution is confronted with a judicial order to turn over information that it does not wish to make available, the prosecution has the option of dropping the prosecution and thus avoiding disclosure.8 But that alternative may not always be available; in the Watergate prosecution, only by revoking the authority of the Special Prosecutor and bringing the cases back into the confines of the Department of Justice could this possibility have been realized.9
In civil cases, the government may invoke the state secrets privilege against revealing military or other secrets. In United States v. Reynolds,10 a tort claim brought against the United States for compensation for the deaths of civilians in the crash of an Air Force plane testing secret electronics equipment, plaintiffs sought discovery of the Air Force's investigation report on the accident, and the government resisted on a claim of privilege as to the nondisclosure of military secrets. The Court accepted the Government's claim, holding that courts must determine whether under the circumstances the claim of privilege was appropriate without going so far as to force disclosure of the thing the privilege is designed to protect. The private litigant's showing of necessity for the information should govern in each case how far the trial court should probe. Where the necessity is strong, the court should require a strong showing of the appropriateness of the privilege claim, but once the court is satisfied of the appropriateness the privilege must prevail no matter how compelling the need.11
Reynolds dealt with an evidentiary privilege. There are other circumstances, however, in which cases must be "dismissed on the pleadings without ever reaching the question of evidence."12 In holding that federal courts should refuse to entertain a breach of contract action seeking enforcement of an agreement to compensate someone who performed espionage services during the Civil War, the Court in Totten v. United States declared that "public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential."13
Prosecutorial and Grand Jury Access to Presidential Documents
Recognizing that the "public has a right to every man's evidence", the Court has held that the President may be required to testify or produce documents in criminal proceedings when called upon by the courts.14 This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the infamous treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.15 Specifically, he declared that in contrast to common law privileges afforded the King of England, the President was "not exempt from the general provisions of the constitution," like the Sixth Amendment, that provides for a compulsory process for the defense.16 Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold specific information from disclosure based on the existence of a privilege.17 In the two centuries since the Burr trial, historical practice by the executive branch18 and Supreme Court rulings unequivocally and emphatically endorsed Chief Justice Marshall's position that the President was subject to federal criminal process.19 In 2020, the Court extended this precedent to the context of a state criminal proceeding, concluding that the President was not absolutely immune from state criminal subpoenas.20
While the President is subject to criminal process, the question remains as to the limits on that process. The Court has recognized several constraints on the ability of a prosecutor to obtain evidence from the President through the use of a criminal subpoena.21 First, like any citizen, the President can challenge a particular subpoena on the grounds that it was issued in bad faith or was unduly broad.22 Second, the timing and scope of criminal discovery must be informed by the nature of the office of the President—for example, granting deference in scheduling proceedings to avoid significant interference with the President's official responsibilities.23 Third, the President can raise subpoena-specific constitutional challenges, arguing that compliance with a particular subpoena would significantly interfere with his efforts to carry out an official duty.24 As the Court first recognized in United States v. Nixon, one particularly notable constitutionally based challenge that a President can lodge against a criminal subpoena is a claim of executive privilege in certain presidential communications.25
Presidential communications, the Nixon Court said, have "a presumptive privilege." "The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution." The operation of government is furthered by the protection accorded communications between high government officials and those who advise and assist them in the performance of their duties. "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." The separation of powers basis derives from the conferral upon each of the branches of the Federal Government of powers to be exercised by each of them in great measure independent of the other branches. The confidentiality of presidential conversations flows then from the effectuation of enumerated powers.26
However, the Court continued, the privilege is not absolute. The federal courts have the power to construe and delineate claims arising under express and implied powers. Deference is owed the constitutional decisions of the other branches, but it is the function of the courts to exercise the judicial power, to say what the law is. The Judicial Branch has the obligation to do justice in criminal prosecutions, which involves the employment of an adversary system of criminal justice in which all the probative facts, save those clearly privileged, are to be made available. Thus, although the President's claim of privilege is entitled to deference, the courts must balance two sets of interests when the claim depends solely on a broad, undifferentiated claim of confidentiality.
"In this case we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of his responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution."
"On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. . . ."
"We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice."27
Obviously, United States v. Nixon left much unresolved. It did recognize the constitutional status of executive privilege as a doctrine. It did affirm the power of the courts to resolve disputes over claims of the privilege. But it left unsettled just how much power the courts have to review claims of privilege to protect what are claimed to be military, diplomatic, or sensitive national security secrets. It did not indicate what the status of the claim of confidentiality of conversations is when it is raised in civil cases, nor did it touch upon denial of information to Congress, or public disclosure of information.
The Court's decision in Nixon v. Administrator of General Services28 did not elucidate any of these questions to any great degree. In upholding the Presidential Recordings and Materials Preservation Act, which directed the government to take custody of former President Nixon's records so that they could be screened, catalogued, and processed by professional archivists in GSA, the Court viewed the assertion of privilege as directed only to the facial validity of the requirement of screening by executive branch professionals, and not at all related to the possible public disclosure of some of the records. The decision did recognize "adequate justifications" for enactment of the law, and termed them cumulatively "comparable" to those held to justify in camera inspection in United States v. Nixon.29 Congress's purposes cited by the Court included the preservation of the materials for legitimate historical and governmental purposes, the rationalization of preservation and access to public needs as well as each President's wishes, the preservation of the materials as a source for facilitating a full airing of the events leading to the former President's resignation for public and congressional understanding, and preservation for the light shed upon issues in civil or criminal litigation. Although interestingly instructive, the decision may be so attuned to the narrow factual circumstances that led to the Act's passage as to leave the case of little precedential value.
Public disclosure was at issue in 2004 when the Court weighed a claim of executive privilege asserted as a bar to discovery orders for information disclosing the identities of individuals who served on an energy task force chaired by the Vice President.30 Although the case was remanded on narrow technical grounds, the Court distinguished United States v. Nixon,31 and, in instructing the appeals court on how to proceed, emphasized the importance of confidentiality for advice tendered the President.32
Congressional Access to Executive Branch Information
Presidents and Congresses have engaged in protracted disputes over provision of information from the former to the latter, but the basic thing to know is that most congressional requests for information are complied with. The disputes, however, have been colorful and varied.33 The basic premise of the concept of executive privilege, as it is applied to resist requests for information from Congress as from private parties with or without the assistance of the courts, is found in the doctrine of separation of powers, the prerogative of each coequal branch to operate within its own sphere independent of control or direction of the other branches. In this context, the President then asserts that phase of the claim of privilege relevant to the moment, such as confidentiality of communications, protection of diplomatic and military secrets, or preservation of investigative records. Counterposed against this assertion of presidential privilege is the power of Congress to obtain information upon which to legislate, to oversee the carrying out of its legislation, to check and root out corruption and wrongdoing in the Executive Branch, involving both the legislating and appropriating function of Congress, and in the final analysis to impeach the President, the Vice President, and all civil officers of the Federal Government.
For many years, all disputes between the President and Congress with regard to requests for information were settled in the political arena, with the result that few if any lasting precedents were created and only disputed claims were left to future argument. The Senate Select Committee on Presidential Campaign Activities, however, elected to seek a declaratory judgment in the courts with respect to the President's obligations to obey its subpoenas. The Committee lost its case, but the courts based their rulings upon prudential considerations rather than upon questions of basic power, inasmuch as by the time the case was considered impeachment proceedings were pending in the House of Representatives.34 The House Judiciary Committee subpoenas were similarly rejected by the President, but instead of going to the courts for enforcement, the Committee adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas.35
In Trump v. Mazars, the Court recognized several separation-of-powers-based limitations on Congress's ability to access presidential records.36 Writing on behalf of the Court, Chief Justice Roberts began by acknowledging three central limits on all congressional inquiries, regardless of the target of the inquiry: (1) there must be a valid legislative purpose related to a subject of legislation; (2) the purpose of the inquiry must not be for law enforcement or to expose for the sake of exposure; and (3) certain constitutional and common law privileges can limit disclosures of information.37 The Court, however, viewed these limitations, standing alone, as inadequately restricting Congress's powers in a dispute with the executive branch.38 After all, according to Mazars, any paper possessed by a President could relate to a conceivable subject of legislation, possibly allowing Congress significant authority to interfere with the executive branch.39
Recognizing that the typical limits on the subpoena power did not prevent Congress from attempting to "aggrandize itself at the President's expense," the Chief Justice feared that judicial resolution of such a dispute using only those limits could deter negotiation between the two branches, historically the hallmark of such inquiries, and encourage Congress to seek compliance through the courts.40 As a result, the Chief Justice instructed lower courts to perform a "careful analysis" using "[s]everal special considerations" that take "adequate account" of the separation-of-powers principles at stake during a legislative inquiry into the President's records.41 Specifically, in such a dispute, courts should, among other considerations: (1) carefully assess whether the confrontation can be avoided by relying on other sources to provide Congress the information it needs in light of its legislative objective; (2) "insist" on a subpoena that is no broader than is reasonably necessary to support Congress's objective; (3) consider the nature of the evidence of Congress's legislative purpose, preferring more detailed and substantial evidence to vague or loosely worded evidence of Congress's purpose; and (4) assess the burdens, such as time and attention, the subpoena imposes on the President.42
- E.g., 6 Ops. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890).
- United States v. Lovett, 328 U.S. 303 (1946).
- E.g., 2 J. Richardson, supra at 847.
- United States v. Lovett, 328 U.S. 303, 313 (1946).
- For a good statement of the basis of the doctrine, the areas in which it is asserted, and historical examples, see Executive Privilege: The Withholding of Information by the Executive: Hearings Before the Senate Judiciary Subcommittee on Separation of Powers, 92d Congress, 1st Sess. (1971), 420–43, (then-Assistant Attorney General Rehnquist). Former Attorney General Rogers, in stating the position of the Eisenhower Administration, identified five categories of executive privilege: (1) military and diplomatic secrets and foreign affairs, (2) information made confidential by statute, (3) information relating to pending litigation, and investigative files and reports, (4) information relating to internal government affairs privileged from disclosure in the public interest, and (5) records incidental to the making of policy, including interdepartmental memoranda, advisory opinions, recommendations of subordinates, and informal working papers. The Power of the President To Withhold Information from the Congress, Memorandum of the Attorney General, Senate Judiciary Subcommittee on Constitutional Rights, 85th Congress, 2d Sess. (Comm. Print) (1958), reprinted as Rogers, Constitutional Law: The Papers of the Executive Branch, 44 A.B.A.J. 941 (1958). In the most expansive version of the doctrine, Attorney General Kleindienst argued that the President could assert the privilege as to any employee of the Federal Government to keep secret any information at all. Executive Privilege, Secrecy in Government, Freedom of Information: Hearings Before the Senate Government Operations Subcommittee on Intergovernmental Relations, 93d Congress, 1st Sess. (1973), I:18 passim. For a strong argument that the doctrine lacks any constitutional or other legal basis, see R. Berger, Executive Privilege: A Constitutional Myth (1974). The book, however, precedes the Court decision in Nixon.
- There are also, of course, instances of claimed access for other purposes, for which the Freedom of Information Act, 80 Stat. 383 (1966), 5 U.S.C. § 552, provides generally for public access to governmental documents. In 522(b), however, nine types of information are exempted from coverage, several of which relate to the types as to which executive privilege has been asserted, such as matter classified pursuant to executive order, interagency or intra-agency memoranda or letters, and law enforcement investigatory files. See, e.g., EPA v. Mink, 410 U.S. 73 (1973); FTC v. Grolier, Inc., 462 U.S. 19 (1983); CIA v. Sims, 471 U.S. 159 (1985); John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
- See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of Criminal Procedure. The earliest judicial dispute involving what later became known as executive privilege arose in United States v. Burr, 25 F. Cas. 30 and 187 (C.C.D. Va. 1807), in which defendant sought certain exculpatory material from President Jefferson. Dispute continues with regard to the extent of presidential compliance, but it appears that the President was in substantial compliance with outstanding orders if not in full compliance.
- E.g., Alderman v. United States, 394 U.S. 165 (1969).
- Thus, defendant in United States v. Ehrlichman, 376 F. Supp. 29 (D.D.C. 1974), was held entitled to access to material in the custody of the President wherein the President's decision to dismiss the prosecution would probably have been unavailing.
- 345 U.S. 1 (1953).
- 345 U.S. at 7–8, 9–10, 11. Withholding of information relating to governmental employees' clearances, disciplines, or discharges often raises claims of such privilege. E.g., Webster v. Doe, 486 U.S. 592 (1988); Department of the Navy v. Egan, 484 U.S. 518 (1988). After the Court approved a governmental secrecy agreement imposed on CIA employees, Snepp v. United States, 444 U.S. 507 (1980), the government expanded its secrecy program with respect to classified and classifiable information. When Congress sought to curb this policy, the Reagan Administration convinced a federal district judge to declare the restrictions void as invasive of the President's constitutional power to manage the executive. National Fed'n of Fed. Employees v. United States, 688 F. Supp. 671 (D.D.C. 1988), vacated and remanded sub nom. American Foreign Service Ass'n v. Garfinkel, 490 U.S. 153 (1989). For similar assertions in the context of plaintiffs suing the government for interference with their civil and political rights during the protests against the Vietnam War, in which the plaintiffs were generally denied the information in the possession of the government under the state-secrets privilege, see Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978); Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983). For review and analysis, see Quint, The Separation of Powers Under Carter, 62 Tex. L. Rev. 785, 875–80 (1984).
- Reynolds, 345 U.S. at 11, n.26.
- 92 U.S. 105, 107 (1875). See also Tenet v. Doe, 544 U.S. 1, 9 (2005) (reiterating and applying Totten's "broader holding that lawsuits premised on alleged espionage agreements are altogether forbidden"). The Court in Tenet distinguished Webster v. Doe on the basis of "an obvious difference . . . between a suit brought by an acknowledged (though covert) employee of the CIA and one filed by an alleged former spy." Id. at 10.
- See Trump v. Vance, 140 S. Ct. 2412, 2420 (2020).
- See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 14,692D).
- See id. (Observing that while the King is "born to power" and can do no wrong, the President, by contrast is "of the people" and subject to the law).
- See United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694).
- See Vance, 140 S. Ct. at 2423 (discussing historical practices of Presidents Monroe, Grant, Ford, Carter, and Clinton).
- Clinton v. Jones, 520 U.S. 681, 704 (1997) (citing United States v. Nixon, 418 U.S. 683, 706 (1974)). In rejecting separation-of-powers challenges to claims that the President is immune from federal criminal process, the Court rejected the argument that criminal subpoenas rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions. Id. at 702–03.
- See Vance, 140 S. Ct. at 2425–28 (rejecting the categorical argument that state criminal subpoenas would unduly distract the President, impose a stigma on the presidency, or result in harassment by state prosecutors). The Vance Court also rejected the argument that a state prosecutor should have to satisfy a heightened standard of need before seeking a sitting President's records, absent any constitutional privileges. Id. at 2428–31. Importantly, in Vance, the state prosecutor was seeking private presidential records, and no claim of executive privilege was at stake. Id. at 2432 (Kavanaugh, J., concurring in the judgment). The Court refused to extend the heightened-need standard established in Nixon to private records, discussed infra, reasoning that: (1) Burr and its progeny foreclosed that argument; (2) the heightened-need standard was unnecessary to allow the President to fulfill his Article II functions; and (3) the public interest in fair and effective law enforcement favors "comprehensive access to evidence." Id. at 2429–30 (majority opinion).
- See id.
- Id. at 2431.
- Id. at 2431–32.
- 418 U.S. 683, 708 (1974).
- 418 U.S. at 707–08. Presumably, the opinion recognizes a similar power in the federal courts to preserve the confidentiality of judicial deliberations, cf. New York Times Co. v. United States, 403 U.S. 713, 752 n.3 (1971) (Chief Justice Burger dissenting), and in each house of Congress to treat many of its papers and documents as privileged. Cf. Soucie v. David, 448 F.2d 1067, 1080, 1081–1982 (C.A.D.C. 1971) (Judge Wilkey concurring); Military Cold War Escalation and Speech Review Policies: Hearings Before the Senate Committee on Armed Services, 87th Congress, 2d Sess. (1962), 512 (Senator Stennis). See Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 911 (1976); United States v. Ehrlichman, 389 F. Supp. 95 (D.D.C. 1974).
- 418 U.S. 683, 711–13 (1974). Essentially the same decision had been arrived at in the context of subpoenas of tapes and documentary evidence for use before a grand jury in Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973).
- 433 U.S. 425, 446–55 (1977). See id. at 504, 545 (Chief Justice Burger and Justice Rehnquist dissenting). The decision does resolve one outstanding question: assertion of the privilege is not limited to incumbent Presidents. Id. at 447–49. Subsequently, a court held that former-President Nixon had had such a property expectancy in his papers that he was entitled to compensation for their seizure under the Act. Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992).
- 433 U.S. at 452.
- Cheney v. United States District Court, 542 U.S. 367 (2004).
- Although the information sought in Nixon was "important to the constitutional need for production of relevant evidence in a criminal proceeding," the suit against the Vice President was civil, and withholding the information "does not hamper another branch's ability to perform its 'essential functions.'" 542 U.S. at 383, 384.
- Jump to essay-32The Court recognized the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties. 542 U.S. at 382. But cf. Clinton v. Jones, 520 U.S. 681, 702 (1997).
- See the extensive discussion in Shane, Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress, 71 Minn. L. Rev. 461 (1987).
- Senate Select Committee on Presidential Campaign Activities v. Nixon, 370 F. Supp. 521 (D.D.C.), aff'd, 498 F.2d 725 (D.C. Cir. 1974).
- President Nixon's position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 Wkly. Comp. Pres. Docs. 592 (1974). The impeachment article and supporting material are set out in H. Rep. No. 93-1305, 93d Cong., 2d Sess. (1974).
- See 140 S. Ct. 2019, 2036 (2020).
- Id. at 2031–32.
- Id. at 2033.
- Id. at 2033–34.
- Id. While the papers at stake in Mazars were the President's personal records, the Court concluded that the close connection between the Office of the President and its occupant did not diminish the separation-of-powers concerns at issue, and may have even posed a heightened risk given the records' less evident connection to a legislative task. Id. at 2035. The Mazars Court likewise rejected the argument that separation-of-powers concerns were diminished because the records at issue were in the hands of a third party, as opposed to the President himself. Id. For the Court, the central issue was that the President's information was at stake, and ruling otherwise would have encouraged side-stepping constitutional requirements. Id.
- Jump to essay-42Id. at 2035–36. The Court observed that "[o]ther considerations may be pertinent as well." Id. at 2036. While adopting this four-factor test, the Court rejected the need for a more "demanding" standard that would have required Congress to demonstrate a specific need for particular records that were "critical" to a legislative purpose. Id. at 2032–33 (concluding that imposing a standard akin to the one governing executive privilege claims would risk seriously impeding Congress in carrying out inquiries to obtain information it needs to legislate effectively).
- 433 U.S. 425, 439 "We reject the argument that only an incumbent President may assert such claims and hold that appellant, as a former President, may also be heard to assert them."