Presidential Executive Privilege

When Presidents Stonewall Congress

US presidential seal attached to ivy-covered stone fence
Executive Privilege: When Presidents Stonewall Congress. Walter Bibikow / Getty Images

Executive privilege is an implied power claimed by Presidents of the United States and other officials of the executive branch of government to withhold from Congress, the courts or individuals, information that has been requested or subpoenaed. Executive privilege is also invoked to prevent executive branch employees or officials from testifying in Congressional hearings.

The U.S. Constitution makes no mention of either the power of Congress or the federal courts to request information or the concept of an executive privilege to refuse such requests.

However, the U.S. Supreme Court has ruled that executive privilege may be a legitimate aspect of the separation of powers doctrine, based on the constitutional powers of the executive branch to manage its own activities.

In the case of United States​ v. Nixon, the Supreme Court upheld the doctrine of executive privilege in the case of subpoenas for information issued by the judicial branch, instead of by Congress. In the court’s majority opinion, Chief Justice Warren Burger wrote that the president holds a qualified privilege to require that the party seeking certain documents must make a “sufficient showing” that the “Presidential material” is “essential to the justice of the case.” Justice Berger also stated that the president’s executive privilege would more likely to be valid when applied to cases when the oversight of the executive would impair that the executive branch’s ability to address concerns of national security.

Reasons for Claiming Executive Privilege

Historically, presidents have exercised executive privilege in two types of cases: those that involve national security and those that involve executive branch communications.

The courts have ruled that presidents can also exercise executive privilege in cases involving ongoing investigations by law enforcement or during deliberations involving disclosure or discovery in civil litigation involving the federal government.

Just as Congress must prove it has the right to investigate, the executive branch must prove it has a valid reason to withhold information.

While there have been efforts in Congress to pass laws clearly defining executive privilege and setting guidelines for its use, no such legislation has ever passed and none is likely to do so in the future.

Reasons of National Security

Presidents most often claim executive privilege to protect sensitive military or diplomatic information, which if disclosed, could place the security of the United States at risk. Given the president’s constitutional power as commander and chief of the U.S. Military, this “state secrets” claim of executive privilege is rarely challenged.

Reasons of Executive Branch Communications

Most conversations between presidents and their top aides and advisers are transcribed or electronically recorded. Presidents have contended that executive privilege secrecy should be extended to the records of some of those conversations. The presidents argue that in order for their advisers to be open and candid in giving advice, and to present all possible ideas, they must feel safe that the discussions will remain confidential. This application of executive privilege, while rare, is always controversial and often challenged.

In the 1974 Supreme Court case of United States v. Nixon, the Court acknowledged "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties." The Court went on to state that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process."

While the Court thus conceded the need for confidentiality in discussions between presidents and their advisers, it ruled that the right of presidents to keep those discussions secret under a claim of executive privilege was not absolute, and could be overturned by a judge. In the Court’s majority opinion, Chief Justice Warren Burger wrote, "[n]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."

The ruling reaffirmed decisions from earlier Supreme Court cases, including Marbury v. Madison, establishing that the U.S. court system is the final decider of constitutional questions and that no person, not even the president of the United States, is above the law.

Brief History of Executive Privilege

While Dwight D. Eisenhower was the first president to actually use the phrase “executive privilege,” every president since George Washington has exercised some form of the power.

In 1792, Congress demanded information from President Washington regarding a failed U.S. military expedition. Along with records about the operation, Congress called members of the White House staff to appear and deliver sworn testimony. With the advice and consent of his Cabinet, Washington decided that, as the chief executive, he had the authority to withhold information from Congress. Although he eventually decided to cooperate with Congress, Washington built the foundation for future use of executive privilege.

Indeed, George Washington set the proper and now recognized standard for using executive privilege: Presidential secrecy must be exercised only when it serves the public interest.