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The Executive Privilege Doctrine

What is Executive Privilege?

Presidents who object to disclosing sensitive or embarrassing information to Congress or the courts often rely on "executive privilege." This legal doctrine is rooted in the president's need for candid advice. After all, if advisers knew that their words or memos could end up being reported on the evening news, they might hesitate to speak up, depriving the president of frank feedback. For this reason, the law generally allows the president to withhold information about internal deliberations even in response to a subpoena.

While the doctrine has valid uses, most assertions of executive privilege generate significant public controversy. Typically, the opposing political party claims that the president is concealing something politically damaging that should be disclosed to the American public. Presidents have asserted executive privilege since the earliest days of the Republic, but the Supreme Court first clarified the doctrine's contours during the Watergate scandal.

So just what is the executive privilege doctrine and when does it apply? Read on to learn more about the doctrine and how it has taken shape over time.

Executive Privilege Doctrine: The Nixon Tapes Controversy

When a beleaguered President Nixon wanted to dodge a demand to turn over tape recordings he'd made of Oval Office conversations with aides and advisers, he invoked executive privilege. The Supreme Court ultimately concluded that he lacked a valid basis for withholding the secret tapes.

In its landmark 1974 decision, US v. Nixon, the high court recognized that presidents generally have a right to maintain the confidentiality of conversations with aides. There is a need for privacy so that staff feel comfortable offering "candid, objective, and even blunt or harsh opinions" necessary for sound presidential decisionmaking.

However, a president's right to keep internal deliberations private is not absolute and can be outweighed by competing considerations. These considerations, somewhat ill-defined in the sparse case law, relate to the constitutional needs of the other branches of government. In the end, the justices unanimously rejected Nixon's position that the tapes were privileged. He resigned from the presidency two weeks later.

Two Forms of Executive Privilege

The courts today recognize the following two types of executive privilege:

  1. The presidential communications privilege; and
  2. The deliberative process privilege.

The presidential communications privilege involving direct communications with the president was at issue in the Nixon tapes case. The deliberative process privilege, on the other hand, covers a much wider swath of executive branch officials. Similar to the president, lower federal officeholders need to be able to have private communications with their own advisers in order for the government to function properly. To encourage candor, the deliberative process privilege shields most of these deliberations from outside gaze.

But again, these privilege are not absolute. Courts balance the interests that exist on both sides of the disclosure issue in order to determine whether the executive branch must hand over subpoenaed information or documents.

Other Historical Uses of the Privilege

In recent times, Presidents Gerald Ford, Ronald Reagan, and George H.W. Bush scarcely used executive privilege, mindful that the public had become highly suspicious of it after Watergate.

Then in 1998 President Bill Clinton generated intense controversy when he asserted the presidential communications privilege a number of times during the Whitewater and Monica Lewinsky scandals. A federal judge ruled against him, and he chose not to appeal the decision.

Later, executive privilege disputes arose during the administrations of Presidents George W. Bush and Barack Obama. President Donald Trump notably asserted executive privilege on a number of occasions, including to prevent the disclosure of the underlying evidence from Special Counsel Robert Mueller's investigation of Russian interference in the 2016 presidential election. He also invoked the privilege to, among other things, stop close aides from testifying to Congress about whether Trump sought to impede the special counsel's investigation.

Unless resolved between the executive and legislative branches, contentious disputes over executive privilege ultimately end up at the Supreme Court which then clarifies when a president can rely on executive privilege, as it did in the case of President Nixon. This question is important because it goes to the core of the Constitution's system of checks and balances. If executive privilege were limitless, a president could operate free from meaningful congressional oversight. On the other hand, a country's leader needs some ability to consult with advisers privately.

What Legal Privileges Apply to You? Find Out Today by Speaking with an Attorney

Although the executive privilege doctrine may be more relevant for presidents and their administrations, there are other privileges that can apply to you if you're the target of an investigation. The marital privilege, for example, prevents your spouse from testifying against you and the attorney-client privilege ensures that communications with your attorney remain confidential. Get in touch with an experienced litigation attorney near you today to learn more about privileges and when they may apply to you.

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