Description: Inherent power of the president to withhold information from Congress and the courts or to refuse to testify in a legislative or judicial proceeding.
Significance: The Supreme Court recognized a constitutionally based limited privilege grounded in the doctrine of the separation of powers.
Presidential discretion to refuse to appear before a legislative or judicial proceeding is sometimes considered a separate category of executive discretion called executive privilege, or presidential privacy. According to William Safire, the phrase “executive privilege” was first used in the 1950's, but the concept dates back to the practice of the royal prerogative, privilege of clergy, and privileges of Parliament.
Origins and Early Uses
Executive privilege is also considered an implied power under Article II of the U.S. Constitution. George Washington claimed the authority to withhold information from Congress during a 1792 congressional investigation into the St. Clair Affair, in which General Arthur St. Clair, governor of the Northwest Territory, suffered a devastating defeat when ambushed by Indians in 1791. Although Washington gave the House of Representatives the documents it requested regarding the St. Clair expedition, the president argued that if he deemed it in the national interest, he could withhold the information. Because of its opaque historical roots, disagreement exists regarding the meaning and scope of executive privilege, its application in U.S. government, and its constitutional basis. As a result of these disagreements, in the post-World War II period, federal courts frequently were asked to decide cases involving executive privilege. Constitutional scholars such as Raoul Berger represent one side of the debate that argues that executive privilege is a myth, not a constitutional reality. Proponents of a broad interpretation of executive privilege tend to be presidents and executive officials who argue for it in a particular political context rather than on principle. The debate over its application has been colored by the specific controversies that engendered its use. For example, President Dwight D. Eisenhower used executive privilege to prevent Defense Department officials from revealing information sought by the House of Representatives during the Army-Joe McCarthy hearings in 1953-1954. Only a president can invoke executive privilege because in the Constitution, all executive power rests in that office. Executive privilege is justified by the president's need to receive frank advice from advisers, to protect national security, and to check and balance the subpoena power of Congress and the courts. In each of these cases, the justification for keeping information within the executive branch is national interest or the public good, often in combination with national security. Although executive privilege has no textual mooring in the Constitution, it emanates from the principle of the separation of powers.
A Limited Privilege
The Supreme Court set limits to executive privilege in the landmark precedent United States v. Nixon (1974), which led to the resignation of President Richard M. Nixon. In the 8-0 decision written by Chief Justice Warren E. Burger, the Court ruled that the president may not give privileged status to information that is instrumental to a criminal investigation. Nixon's use of executive privilege regarding the Watergate tapes was considered inconsistent with the idea that this privilege exists to serve the national interest, not to protect the president from criminal prosecution or impeachment. Although post-World War II presidents have tended to argue for an absolute privilege, the federal courts have rejected the idea based largely on the legitimate needs of the other branches of government to acquire information from the executive. The Court has accepted a constitutionally based limited privilege. The closest the Court came to accepting an absolute privilege power was in Spalding v. Vilas (1896) and Barr v. Matteo (1959). The Court's position, however, was reshaped by the Watergate affair, and the effects of the United States v. Nixon decision were apparent in Butz v. Economou (1978). In the Butz decision, the majority, represented by Justice Byron R. White, denied absolute immunity based in part on its inconsistency with the rule of law. In the 1990's, the federal courts ruled that President Bill Clinton's use of executive privilege was unfounded because, as with Nixon, it was invoked to avoid criminal prosecution and impeachment, not to serve the needs of the nation. During the investigation involving the president and Monica Lewinsky by independent council Kenneth Starr, the Clinton administration attempted to expand the meaning and application of executive privilege to new areas of the president's life. Two such areas were the attempt to extend executive privilege to the president and his attorneys and to the Secret Service agents who protect the president. U.S. District Judge Norma Holloway Johnson and a three-judge appeals court panel rejected Clinton's claims of executive privilege in the Lewinsky investigation. Johnson ruled that White House attorney Bruce Lindsey and White House aide Sidney Blumenthal must testify before a federal grand jury. President Clinton's attorneys appealed the decision to the Supreme Court, but the Court refused to hear the case. In a related matter, the Clinton administration argued that Secret Service agents are covered by “protective-function privilege” because requiring them to testify about the president before a federal grand jury or to be deposed by the independent council's office is incompatible with their duty to protect the president. Acceptance of this claim would have significantly expanded the extent of executive privilege. However, the Court also refused to hear this case, letting stand the lower court's decision to deny the president's claim of a protective-function privilege.
- Antieau, Chester James. Our Two Centuries of Law and Life, 1775-1975: The Work of the Supreme Court and the Impact of Both Congress and Presidents. Littleton, Colo.: Fred B. Rothman, 2001.
- Berger, Raoul. Executive Privilege: A Constitutional Myth. Cambridge, Mass.: Harvard University Press, 1974.
- Fisher, Louis. Constitutional Conflicts Between Congress and the President. 4th ed. Lawrence: University Press of Kansas, 1997.
- Rozell, Mark J. Executive Privilege: The Dilemma of Secrecy and Democratic Accountability. Baltimore, Md.: Johns Hopkins University Press, 1994.
- Safire, William. Safire's New Political Dictionary. New York: Random House, 1993.
- Yates, Jeff. Popular Justice: Presidential Prestige and Executive Success in the Supreme Court. Albany, N.Y.: State University of New York Press, 2002.