Over the past year, you’ve probably read or heard something about “executive privilege.” It’s an impressive-sounding phrase that seems to suggest great power, but you may wonder what sorts of actions it covers and when it can be invoked.
Probably the most famous claim of executive privilege occurred during the Watergate investigation when President Richard Nixon asserted that he did not have to hand over White House audio recordings to the special prosecutor because those communications were protected. However, the idea of executive privilege predates the Nixon administration by centuries. While the Constitution does not explicitly mention executive privilege, virtually every president since George Washington has argued that the president and other members of the executive branch should be protected from disclosing certain communications if disclosure would disrupt either the functions or decision-making processes of the executive branch. President Washington argued that he should not have to share with Congress documents related to a failed military campaign. While he eventually turned over the documents in question, the idea of executive privilege implied by the Constitution’s separation of powers remained.
Dwight Eisenhower coined the term “executive privilege” when the McCarthy Committee issued a subpoena for notes and transcripts of conversations from U.S. Army officials. Eisenhower argued (successfully) that a president’s need for candid advice outweighed the committee’s interest. In fact, executive privilege encompasses two distinct privileges: 1) the presidential communications privilege, which protects any communications either by the president directly or by the president’s close advisers; and 2) the deliberative process privilege, which covers any communications by a member of the executive branch made in the course of shaping a policy or decision. The presidential communications privilege is seen as being broader in scope and is meant to preserve the integrity and independence of the president. The deliberative process privilege suggests that members of the executive branch should be able to speak freely when making decisions without the shadow of being compelled to testify before Congress looming over them. Neither type of privilege applies only to the president; neither type of privilege is absolute.
The executive branch hasn’t always prevailed in its claims of privilege. While the Supreme Court recognized this privilege in United States v. Nixon, the court ruled that Nixon had to turn over the audio recordings in dispute. The court also cautioned that the recordings were part of an ongoing criminal investigation, which outweighed any implicit constitutional protection of the executive. The same reasoning was invoked by lower courts when President Bill Clinton attempted to assert executive privilege during an investigation by a special prosecutor and was again invoked when President Barack Obama claimed executive privilege during a gun trafficking investigation. The rule of law – and unimpeded investigation – outweighs such privilege.
At the heart of the dispute over executive privilege is the balance of power between the executive and legislative branches, between the need for privacy in matters of national security and the need for transparency and information. In our current political climate, the push and pull between these competing interests may be stronger than ever.
Kathleen Davies is a staff writer for GetLegal.com. She is a graduate of the University of Michigan Law School and has practiced law and taught legal writing and advocacy.