Understanding Our Constitution - Part 14 - Executive Privilege

Executive privilege is the power claimed by the President and other members of the executive branch to resist subpoenas by the legislative and judicial branches. It is based on the principle that they cannot legally be forced to disclose their confidential communications - as this would adversely affect the operations or procedures of the executive branch.

The concept of executive privilege is not mentioned explicitly in the Constitution. The Supreme Court ruled it to be an element of the separation of powers doctrine. It also is derived from the supremacy of the Constitutional activity of the executive branch. The Constitution says nothing about secrecy in the executive branch. The phrase, executive privilege, does not exist in the document.

Presidents claim the privilege by arguing that it is a functional necessity: the advice they receive and deliberations will not be candid and truthful if they are subject to scrutiny. Aides won’t be willing to give advice if they know they might be called to testify, under oath.

Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a “sufficient showing” that the “Presidential material” is “essential to the justice of the case”.

The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. They must consider the question of separation of powers vs. checks and balances.

The most important use of executive privilege occurred during the Watergate crisis. President Nixon refused to turn over tapes made in the Oval Office. A federal appeals court upheld Nixon’s refusal.

In United States v. Nixon (1974), the Supreme Court ruled that President Nixon was required, despite his claim of executive privilege, to give up the tape recordings. The Supreme Court held that grand juries and juries on federal cases are entitled to all the evidence in a criminal case. No one, not even a President, may withhold evidence from the courts.

This case recognized, for the first time, the Presidential claim to executive privilege. But it left the final decision about the validity of the claim to the federal courts.