executive privilege

Until about 1960 executive privilege was referred to as “presidential discretion to withhold information” or by some similar term. Because there is no textual underpinning in the Constitution for the claim to executive privilege, which presidents have based on notions of separation of powers, critics as diverse as former Undersecretary of State George Ball and legal historian Raoul Berger have labeled it “a constitutional myth.” Still, the issue has been contested since George Washington's administration, and it is difficult to see why this matter is different from issues such as presidential removal power or the congressional power of investigation. Given the sparseness of language in many provisions of the Constitution, principles often emerge from a combination of litigation and custom.

Until recent decades, when executive privilege controversies have arisen more frequently, presidential discretion to withhold information was seldom differentiated from the presidential claim of discretion not to appear—executive immunity—and in real‐life situations the two are often intertwined. Theoretically, both claims of executive prerogative affect relations with the courts and legislature, but executive control of prosecution tends to minimize problems at the judicial level while the rise of routine investigations in Congress has thrust questions of executive privilege to the forefront. Until the twentieth century, virtually all disputes were resolved by mutual accommodation, but in recent years the judiciary has increasingly become the decision maker. Of course, most matters are still resolved by the practical politics of the situation.

There is an underlying dynamic in most claims of privilege. In the initial stages the executive has a virtual monopoly of information on the case so a temptation exists to overuse claims of privilege. When controversy persists, however, the administration's advantages wane. The public assumes dark deeds are being covered up. As informants and information slowly accumulate, politics tends to force executive revelations. The presidency loses on the core issue and reveals the requested information, but looks bad in rejecting candor from the beginning. At the same time, the result is often a Pyrrhic victory for Congress or the courts that engenders a loss of public confidence in all political institutions. Aware of this history and politically attuned, both sides usually strive for some reasonable outcome.

Several core notions are hidden behind the label of executive privilege. First, presidents have insisted that they have a need for confidential, candid advice from subordinates and that too‐easy public revelation of that advice will destroy these vital relationships. This need was acknowledged by Chief Justice John Marshall in Marbury v. Madison (1803) and has historically been treated tenderly both by Congress and the courts. Any claim to an absolute privilege seems undercut by ex‐presidents' and ex‐subordinates' growing propensity to write “kiss‐and‐tell” memoirs immediately upon leaving office. Second, presidents sometimes claim executive privilege by virtue of reasons of state, insisting that military and foreign‐affairs secrets should not be divulged. Both courts and congressional committees have developed techniques of limited, in camera, inspection of secret materials by trusted congressional leaders or judges, but there are limits to this as well. Third, the claim is sometimes based on practical necessity, as when, for example, the identities of spies or informers may need to be protected. The validity of the argument from practical necessity is historically well founded: The issue first arose when President Washington withheld information on the Jay Treaty from the House of Representatives, and congressional leader James Madison recognized that the untimely disclosure of otherwise pertinent information could jeopardize national interests.

Since the administration of Dwight D. Eisenhower, presidents have repeatedly pressed for an absolute privilege—but they have suffered an almost uniform record of rebuffs in the courts. Nevertheless, strong conditional privilege rights have been established. Both politically and legally, the executive has had to accommodate the functional claims of the other branches, which have their own valid needs to obtain information.

At one extreme, such needs arise during the process of confirmation of presidential subordinates. The Senate's power to reject a nomination makes it imperative for the president to share even the most confidential information in some way if the Senate insists. When a congressional committee (authorized by the entire chamber) litigates to obtain information, the courts have insisted on the judiciary's right to decide and frame the conditions of the investigation. In general, courts are highly deferential to executive claims; even the series of cases involving President Richard Nixon tended to acknowledge the normal presumption that the executive withholding was correct and the burden of proof was on the party challenging such a decision. In criminal matters the courts will accept executive claims, but if a defendant makes a reasonable showing that confidential material might significantly affect the case, the court may force the government to choose between confidentiality and giving up the prosecution. When the officeholder is the criminal defendant, the claim of confidentiality is at its weakest. Under the decisions in United States v. Nixon (1974) and Nixon v. Administrator of General Services (1977), the courts must weigh the advantages and disadvantages of disclosure, but clearly officeholders do not have the last word about confidentiality involving colleagues, and least of all about themselves. The case for executive privilege is strongest in private civil suits, although even there the courts retain the last word.

See also Appointment and Removal Power; Foreign Affairs and Foreign Policy.

— Samuel Krislov

The right of the executive to withhold information from the legislature or courts.

In the United States executive privilege has been used by the President, and executive officials given the right by the President, to refuse to appear before congressional committees. Executive privilege has no constitutional basis, but has been claimed as an inherent power based on the separation of powers, and in order to protect the national interest. The right was curtailed by the Supreme Court in 1974, in the case of US v. Nixon, which held that executive privilege was not absolute. The case followed President Nixon's claim that executive privilege meant he could withhold tapes concerning the Watergate scandal from Congress.

From time to time, Presidents of the United States have claimed the executive privilege of withholding information from Congress, the federal courts, or the general public. The Constitution says nothing about secrecy in the executive branch and does not contain the phrase “executive privilege.” Presidents claim the privilege by arguing that it is a functional necessity: the advice they receive and the deliberations in their administration will not be candid and truthful if they are subject to subsequent congressional and judicial scrutiny.

In the 19th century Presidents tried to withhold information about diplomatic and military ventures, but all eventually provided Congress with the information it sought. When President George Washington refused to give Congress information about the Jay Treaty with Great Britain, it was because he claimed such information should be submitted only to the Senate, which must consent to all treaties.

In 1834, Andrew Jackson refused a Senate request for certain cabinet records dealing with his feud with the Bank of the United States. In a message to the Senate, Jackson stated, “The Executive is a coordinate and independent branch of the Government equally with the Senate; and I have yet to learn under what constitutional authority that branch of the Legislature has to require of me an account of any communication, either verbally or in writing, made to the heads of department acting as a cabinet council.”

The modern practice of withholding information was instituted by President William Howard Taft, whose Executive Order 1062 provided that the President could order heads of departments not to furnish information to Congress if it were “incompatible with the national interest.” Prior to World War II, refusals to furnish Congress with information were rare. During the war, however, President Franklin D. Roosevelt refused to turn over some Federal Bureau of Investigation files to congressional committees, and President Harry Truman ordered that congressional requests for personnel files be submitted to him for a final decision about compliance.

The term executive privilege was invented by Dwight Eisenhower's administration. In 1954 the President refused to turn over military personnel records to the Permanent Investigations Subcommittee of the Senate Government Operations Committee, headed by Senator Joseph McCarthy. Most of Congress took Eisenhower's side because McCarthy—without any evidence to back up his allegations—was questioning the loyalty of career military and diplomatic officers, charging them with being communists or communist sympathizers. Then, in 1958, Attorney General William Rogers argued that Eisenhower need not disclose candid advice from his assistants nor provide Congress with any documents relating to Presidential activities.

Other Presidents have also used executive privilege against Congress. President John F. Kennedy ordered General Maxwell Taylor, the White House military adviser, to refuse to testify before a House committee investigating the failure of an American-backed invasion of Cuba in 1961. Richard Nixon refused to supply documents to the House Armed Services Committee when it investigated bombing raids on North Vietnam that occurred without prior Presidential authorization.

The most important use of executive privilege occurred during the Watergate crisis. President Nixon refused to turn over tapes made of conversations in the Oval Office to the Senate Select Committee on Presidential Campaign Activities, which was investigating the Watergate crimes. A federal appeals court upheld Nixon's refusal, agreeing that he did not need to supply evidence about Watergate crimes to a congressional committee whose mandate from Congress was to consider changes in campaign financing laws.

In United States v. Nixon (1974), however, the Supreme Court ruled that President Nixon was required, despite his claim of executive privilege, to give up to a federal court the tape recordings that were sought as evidence against Presidential assistants charged with criminal behavior. Grand juries and juries on federal cases, the Supreme Court held, are entitled to all the evidence in a criminal case. No one, not even a President, may withhold evidence from the courts. While agreeing with Nixon that there is “a valid need for protection of communications” between Presidents and those who advise them, the Supreme Court insisted that the President was required to turn over evidence to the federal judge trying the case. The judge would then decide whether or not Nixon's claim was valid and whether or not the evidence could be introduced at a trial. The Supreme Court concluded that it was up to the courts, not the President, to weigh the balance between legitimate national security interests that might require information to be kept secret and the right of juries to obtain information about crimes.

The United States v. Nixon case recognized for the first time the Presidential claim that there may be, under certain circumstances, a right of executive privilege. But it left the final decision about the validity of the claim to the federal courts.

During the impeachment of Bill Clinton, the White House claimed that the president and his aides were shielded by executive privilege, that his lawyers were shielded by attorney-client privilege, and that Secret Service agents were shielded by “protective privilege.” The federal courts rejected all of these claims, relying on the settled law in the United States v. Nixon case that, absent a national security issue, the president and his aides are required to provide evidence of criminal wrongdoing to grand juries.

See also Checks and balances; Executive orders; Nixon, Richard M.; United States v. Nixon; Watergate investigation (1973–74)

Sources

• Raoul Berger, Executive Privilege: A Constitutional Myth (Cambridge: Harvard University Press, 1974).
• Archibald Cox, “Executive Privilege”, University of Pennsylvania Law Review (June 1974): 1383–1438.
• James Hamilton, The Power to Probe: A Study of Congressional Investigations (New York: Vintage, 1976).
• Mark J. Rozell, Executive Privilege: The Dilemma of Secrecy and Democratic Accountability (Baltimore, Md.: Johns Hopkins University Press, 1994).
• Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973)

Executive Privilege, refers to the right of the executive branch to withhold information from Congress or the judiciary. Although presidents and executive cabinet members often assert a right to executive privilege, this right does not explicitly appear within the text of the U.S. Constitution. Nevertheless, members of the executive branch have claimed that executive privilege is an implied power under Article II and that it is consistent with the principle of Separation of Powers.

The first assertions of executive privilege occurred during the presidency of George Washington. In 1792 the House of Representatives requested information from the Washington administration concerning the military defeat of Major General Arthur St. Clair. Even though the Washington administration did give the requested papers to the House, Washington asserted he had the right to refuse to disclose information that would be harmful to the public. Thus even though Washington cooperated, he set the precedent that at certain times presidents could withhold information.

In 1796 Washington refused to provide the House with requested information concerning the Jay Treaty, pointing out that the House does not play a constitutional role in the treaty-making process. Washington noted, however, that if the House had requested information concerning an impeachment, he would be required to supply such information to the House because of its constitutional responsibilities in the impeachment process.

The federal judiciary had its first opportunity to offer its understanding of executive privilege in United States v. Burr (1807). The case raised the question of whether or not a federal court could require the president to hand over documents to be used in a trial, that is, issue a subpoena. Chief Justice John Marshall ruled that federal courts had the right to issue subpoenas to presidents.

Even though the judiciary recognized that the executive branch is not above the law, Supreme Court justices noted in United States v. Reynolds (1953) that presidents might be able to withhold from the public information concerning military and foreign relations to protect national security. However, the Court believed a president did not possess an absolute right to executive privilege simply through the claim that national security interests were at stake.

The limited nature of executive privilege was expressed again in the landmark case of United States v. Nixon (1974). President Richard Nixon refused to comply with a subpoena requiring him to hand over to a federal court audiotapes that were believed to offer evidence on the executive branch's alleged involvement in the 1972 Watergate break-in. Nixon argued that he had the right to withhold the material to protect the privacy of his communications with his advisers. In a unanimous opinion the Supreme Court recognized that a constitutional right to executive privilege did exist. However, the Court rejected Nixon's claims and required him to produce the tapes for evidence in the investigation. Chief Justice Warren Burger explained that the president was entitled to great deference, particularly on issues of national security. Nonetheless, he emphasized that such deference was conditional and dependent on circumstance. While Nixon argued separation of powers allowed for executive privilege, the justices noted that the system of checks and balances prohibited any absolute claims of executive privilege.

Bibliography

Berger, Raoul. Executive Privilege: A Constitutional Myth. Cambridge, Mass.: Harvard University Press, 1974.

Breckenridge, Adam Carlyle. The Executive Privilege: Presidential Control over Information. Lincoln: University of Nebraska Press, 1974.

Rozell, Mark J. Executive Privilege: The Dilemma of Secrecy and Democratic Accountability. Baltimore, Md.: Johns Hopkins University Press, 1994.

—Francene M. Engel

The right of the president of the United States to withhold information from Congress or the courts.

Historically, presidents have claimed the right of executive privilege when they have information they want to keep confidential, either because it would jeopardize national security or because disclosure would be contrary to the interests of the executive branch.

The Constitution does not specifically enumerate the president's right to executive privilege; rather, the concept has evolved over the years as presidents have claimed it. As the courts have ruled on these claims, their decisions have refined the notion of executive privilege and have clarified the instances in which it can be invoked. The courts have ruled that it is implicit in the constitutional separation of powers, which assigns discrete powers and rights to the legislative, executive, and judicial branches of government. In reality, however, the three branches enjoy not separate but shared powers, and thus are occasionally in conflict. When the president's wish to keep certain information confidential causes such a conflict, the president might claim the right of executive privilege.

The term executive privilege emerged in the 1950s, but presidents since George Washington have claimed the right to withhold information from Congress and the courts. The issue first arose in 1792, when a congressional committee requested information from Washington regarding a disastrous expedition of General Arthur St. Clair against American Indian tribes along the Ohio River, which resulted in the loss of an entire division of the U.S. Army. Washington, concerned about how to respond to this request and about the legal precedent his actions would set, called a cabinet meeting. Although no official record was kept of the proceedings, Thomas Jefferson described the deliberations in his diary. The participants, Jefferson wrote, concluded that Congress had the right to request information from the president, and that the president "ought to communicate such papers as the public good would permit & ought to refuse those the disclosure of which would injure the public." In the case at hand, they agreed that "there was not a paper which might not be properly produced," so Washington provided all the documents that Congress had requested. This event, though notable as the first recorded deliberation concerning executive privilege, did not carry precedential value until after 1957, when Jefferson's notes were discovered. In 1958, Attorney General William P. Rogers cited Jefferson's remarks as precedent for an absolute presidential privilege. Legal scholar Raoul Berger declaimed Rogers's arguments as "at best self-serving assertions by one of the claimants in a constitutional boundary dispute." Instead, Berger argued, Washington's willingness to turn over the requested documents shows his recognition of Congress's right to such materials.

In subsequent incidents, however, Washington and his successors did choose to withhold requested information from Congress, citing various reasons. In 1794, for example, the Senate requested from Washington the correspondence of Gouverneur Morris, the U.S. ambassador to France, who was suspected of aiding the French aristocrats against the revolutionaries despite the United States' official stance of neutrality. Washington provided the letters, but he censored them first, acting on the advice of officials such as Attorney General William Bradford, who said that the president should "communicate to the Senate such parts of the said correspondence as upon examination he shall deem safe and proper to disclose: withholding all such, as any circumstances, may render improper to be communicated." The following year, Washington refused to provide the House with information relating to Ambassador John Jay's negotiation of a treaty with Great Britain, arguing that the House had no constitutional right to participate in the treaty making process and so had no right to request materials associated with it.

The judiciary, like Congress, can also request information from the president. When Aaron Burr was indicted on charges of treason, for example, both Congress and the judiciary asked President Jefferson to provide correspondence from General James Wilkinson, a Burr confidant and aide. Jefferson argued that it was wrong to ask him to provide private letters, written to him, containing confidential information. Chief Justice John Marshall, presiding over the Burr trial, United States v. Burr, 25 Fed. Cas. 187, 191 (C.C. Va. 1807), did not ultimately force Jefferson to turn over each requested document, but he did maintain the right of the judiciary to request such information from the president, writing that "the President of the United States may be … required to produce any paper in his possession" and adding that "[t]he occasion for demanding it ought, in such a case, [to] be very strong, and to be fully shown to the court before its production could be insisted on."

As the power of the president's office grew over the nineteenth and twentieth centuries, presidents attempted more frequently to use executive privilege to shield themselves and their subordinate officials from investigation. In 1836, for example, a House committee requested personnel rosters and salary information from President Andrew Jackson. He declined to fulfill the request, stating that he would "repudiate all attempts to invade the just rights of Executive Departments, and of the individuals composing the same." Similarly, in 1909, President Theodore Roosevelt took personal possession of Federal Trade Commission documents requested by Congress, claiming immunity for the materials since they were under presidential control. In both cases, Congress failed to pursue its investigations.

During the Eisenhower presidency, executive privilege underwent three major developments. First, in the area of national security, the Supreme Court ruled in United States v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727 (1953), that the military may refuse to divulge requested information when national security is at stake. While warning that such requests could not be simply left to the "caprice of executive officers," the Court maintained that there would be times when "there is a reasonable danger that the compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged."

The second development in the use of executive privilege became known as the candid interchange doctrine. In an attempt to shield the executive branch from the bullying investigative tactics of Senator Joseph R. McCarthy, President Dwight D. Eisenhower directed that executive privilege be applied to all communications and conversations between executive branch employees; without the assurance of confidentiality, he claimed, they could not be completely candid. This doctrine marked a tremendous change in the scope of executive privilege, extending it from the president and the president's top advisers to the myriad offices and agencies that make up the executive branch.

Finally, the third development in executive privilege resulted from Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939, 141 Ct. Cl. 38 (Cl. Ct. 1958). In this case, Kaiser sought documents containing executive branch employees' opinions regarding the sale of aluminum manufacturing plants. The court ruled that it was ultimately up to the courts "to determine executive privilege in litigation," adding that "the privilege for intradepartmental advice would very rarely have the importance of diplomacy or security." The opinion in this case contains the first recorded use of the phrase executive privilege.

The use of executive privilege decreased during the 1960s, but it became the crux of the constitutional crisis created by Watergate, a series of scandals involving President Richard M. Nixon and his associates. When Congress sought to obtain White House tapes containing Oval Office conversations, Nixon refused to turn them over, claiming that the tapes were subject to absolute executive privilege and asserting that the judiciary had no authority to order their production or inspection. Eventually the dispute reached the Supreme Court, where, in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court ruled against Nixon. While acknowledging the importance of the president's claims, the Court stated that "neither 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." In its opinion, therefore, the Court explicitly recognized the president's authority to assert executive privilege, but ruled that the use of executive privilege is limited, not absolute. Furthermore, the Court maintained that the judiciary, not the president, has the power to determine the applicability of executive privilege. While the Court affirmed the use of executive privilege, therefore, it determined that in this case, the right of the U.S. people to full disclosure outweighed the president's right to secrecy. This momentous decision soon led to Nixon's resignation from the office of president.

See: United States v. Nixon.

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In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.^[1]

The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. 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."(418 U.S. at 713-14). Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.

Historically, the uses of executive privilege underscore the untested nature of the doctrine, since Presidents have generally sidestepped open confrontations with the United States Congress and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.

Contents 1 Early precedents 2 Modern exercises 3 U.S. v. Nixon 4 Post-Nixon 4.1 Clinton administration 4.2 George W. Bush administration 4.3 House Investigation of the SEC 5 References 6 External links

Early precedents

Executive privilege is a specific instance of the more general common-law principle of deliberative process privilege and is believed to trace its roots to the English Crown Privilege.^[2]

In the context of privilege assertions by US Presidents, "In 1796, President George Washington refused to comply with a request by the House of Representatives for documents related to the negotiation of the then-recently adopted Jay Treaty with the Kingdom of Great Britain. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Therefore, Washington provided the documents to the Senate but not the House."^[3]

President Thomas Jefferson continued the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president would be the judge of that. Jefferson complied with Marshall's order.

Modern exercises

During the period of 1947-49, several major security cases became known to Congress. There followed a series of investigations, culminating in the famous Hiss-Chambers case of 1948. At that point, the Truman Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems.^[4] Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters. Investigation of the State Department and other cases was stymied and the matter left unresolved.

During the Army–McCarthy hearings in 1954, Eisenhower used the claim of executive privilege to forbid the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Department of Defense employees were also instructed not to testify on any such conversations or produce any such documents or reproductions.^[5] This was done to refuse the McCarthy Committee subpoenas of transcripts of monitored telephone calls from Army officials, as well as information on meetings between Eisenhower officials relating to the hearings. This was done in the form of a letter from Eisenhower to the Department of Defense and an accompanying memo from Eisenhower Justice. The reasoning behind the order was that there was a need for "candid" exchanges among executive employees in giving "advice" to one another. In the end, Eisenhower would invoke the claim 44 times between 1955 and 1960.

U.S. v. Nixon

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The Supreme Court addressed 'executive privilege' in United States v. Nixon, the 1974 case involving the demand by Watergate special prosecutor Leon Jaworski that President Richard Nixon produce the audiotapes of conversations he and his colleagues had in the Oval Office of the White House in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records.

The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, "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" and 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 decisionmaking process." This is very similar to the logic that the Court had used in establishing an "executive immunity" defense for high office-holders charged with violating citizens' constitutional rights in the course of performing their duties. The Supreme Court stated: "To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III." Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.

Post-Nixon

Clinton administration

In 1998, President Bill Clinton became the first President since Nixon to assert executive privilege and lose in court, when a Federal judge ruled that Clinton aides could be called to testify in the Lewinsky scandal.^[6]

Later, Clinton exercised a form of negotiated executive privilege when he agreed to testify before the grand jury called by Independent Counsel Kenneth Starr only after negotiating the terms under which he would appear. Declaring that "absolutely no one is above the law", Starr said such a privilege "must give way" and evidence "must be turned over" to prosecutors if it is relevant to an investigation.

George W. Bush administration

The George W. Bush administration invoked executive privilege on numerous occasions.

President George W. Bush first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno,[2] the scandal involving Federal Bureau of Investigation (FBI) misuse of organized-crime informants James J. Bulger and Stephen Flemmi in Boston, and Justice Department deliberations about President Bill Clinton's fundraising tactics, in December 2001.^[7]

Bush invoked executive privilege "in substance" in refusing to disclose the details of Vice President Dick Cheney's meetings with energy executives, which was not appealed by the GAO. In a separate Supreme Court decision in 2004, however, Justice Anthony Kennedy noted "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked.' United States v. Reynolds, 345 U.S. 1, 7 (1953).

"Once executive privilege is asserted, coequal branches of the Government are set on a collision course. 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. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These 'occasion[s] for constitutional confrontation between the two branches' are likely to be avoided whenever possible. United States v. Nixon, supra, at 692."^[8]

Further, on June 28, 2007, Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel Harriet Miers and former political director Sara Taylor,^[9] citing that:

The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.

On July 9, 2007, Bush again invoked executive privilege to block a congressional subpoena requiring the testimonies of Taylor and Miers. Furthermore, White House Counsel Fred F. Fielding refused to comply with a deadline set by the chairman of the Senate Judiciary Committee to explain its privilege claim, prove that the president personally invoked it, and provide logs of which documents were being withheld. On July 25, 2007, the House Judiciary Committee voted to cite Miers and White House Chief of Staff Joshua Bolten for contempt of Congress.^[10][11]

On July 13, less than a week after claiming executive privilege for Miers and Taylor, Counsel Fielding effectively claimed the privilege once again, this time in relation to documents related to the 2004 death of Army Ranger Pat Tillman. In a letter to the House Committee on Oversight and Government Reform, Fielding claimed certain papers relating to discussion of the friendly-fire shooting “implicate Executive Branch confidentiality interests” and would therefore not be turned over to the committee.^[12]

On August 1, 2007, Bush invoked the privilege for the fourth time in little over a month, this time rejecting a subpoena for Karl Rove. The subpoena would have required the President's Senior Advisor to testify before the Senate Judiciary Committee in a probe over fired federal prosecutors. In a letter to Senate Judiciary Chairman Patrick Leahy, Fielding claimed that "Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity...."^[13]

Leahy claimed that President Bush was not involved with the employment terminations of U.S. attorneys. Furthermore, he asserted that the president's executive privilege claims protecting Josh Bolten, and Karl Rove are illegal. The Senator demanded that Bolten, Rove, Sara Taylor, and J. Scott Jennings comply "immediately" with their subpoenas, presumably to await a further review of these matters. This development paved the way for a Senate panel vote on whether to advance the citations to the full Senate. "It is obvious that the reasons given for these firings were contrived as part of a cover up and that the stonewalling by the White House is part and parcel of that same effort", Leahy concluded about these incidents.^{[14][15][16][17]}

As of July 17, 2008, Rove is still claiming executive privilege to avoid a congressional subpoena. Rove's lawyer writes that his client is "constitutionally immune from compelled congressional testimony."^[18]

House Investigation of the SEC

Leaders of the U.S. Securities and Exchange Commission testified on February 4, 2009 before the United States House Committee on Financial Services subcommittee including Linda Chatman Thomsen S.E.C. enforcement director, acting General Counsel Andy Vollmer, Andrew Donohue, Erik Sirri, and Lori Richards and Stephen Luparello of FINRA. The subject of the hearings were on why the SEC had failed to act when Harry Markopolos, a private fraud investigator from Boston alerted the Securities and Exchange Commission detailing his persistent and unsuccessful efforts to get the SEC to investigate Bernard Madoff, beginning in 1999.^[19] Vollmer claimed executive privilege in declining to answer some questions.^[20][21] Subcommittee chairman Paul E. Kanjorski asked Mr. Vollmer if he had obtained executive privilege from the U.S. attorney general.^[20] “No ... this is the position of the agency,” said Vollmer.^[20] "Did the SEC instruct him not to respond to questions?" Mr. Kanjorski asked.^[20] Vollmer replied that it was the position of the Commission and that “the answer is no.”^[20] The SEC announced Vollmer would "leave the Commission and return to the private sector," just 14 days after making the claim.^[22]

References

1. ^ Chief Justice Burger, writing for the majority in US v. Nixon noted: "Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.United States v. Nixon, 418 U.S. 683 (1974) (Supreme Court opinion at FindLaw)
2. ^ Proper Assertion of the Deliberative Process Principle, S Narayan, p 6
3. ^ FindLaw's Writ - Dorf: A Brief History Of Executive Privilege, From George Washington Through Dick Cheney
4. ^ Blacklisted by History, p. 23
5. ^ Blacklisted by History p.575
6. ^ Baker, Peter; and Schmidt, Susan. ""President is Denied Executive Privilege"". http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/starr050698.htm. Retrieved 2007-03-27.  Washington Post, May 6, 1998.
7. ^ Lewis, Neil A. (2001-12-14). "Bush Claims Executive Privilege in Response to House Inquiry". New York Times. http://select.nytimes.com/gst/abstract.html?res=F70A16FC3B5B0C778DDDAB0994D9404482&n=Top%2fReference%2fTimes%20Topics%2fOrganizations%2fF%2fFederal%20Bureau%20of%20Investigation%20. Retrieved 2007-07-17. 
8. ^ Holding, Reynolds. Time, March 21, 2007. ""The Executive Privilege Showdown"". http://www.time.com/time/nation/article/0,8599,1601450,00.html. Retrieved 2007-03-27. 
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11. ^ U.S. House of Representatives Committee on the Judiciary (July 25, 2007). "House Judiciary Reports Contempt Citations to the House of Representatives". Press release. http://judiciary.house.gov/newscenter.aspx?A=837. Retrieved 2007-07-26. 
12. ^ ""White House Rebuffs Congress on Tillman Papers"". Politics (The Seattle Times). August 1, 2007. http://seattletimes.nwsource.com/html/nationworld/2003788310_webtillman13.html. Retrieved 2008-08-01. 
13. ^ "Bush won't let aide Rove testify to Congress". Politics (Reuters). August 1, 2007. http://www.reuters.com/article/topNews/idUSN0141867220070801. Retrieved 2008-08-01. 
14. ^ "Leahy: Bush not involved in firings". Yahoo! News. http://news.yahoo.com/s/ap/20071130/ap_on_go_co/senate_prosecutors_17. Retrieved 2008-11-30. 
15. ^ "Leahy: Rove, others must comply with subpoenas". CNN. http://www.cnn.com/2007/POLITICS/11/29/senate.prosecutors.ap/index.html?section=cnn_latest. Retrieved 2008-11-30. 
16. ^ "Leahy again orders Karl Rove to appear". Bennington Banner. http://www.benningtonbanner.com/headlines/ci_7597568. Retrieved 2008-11-30. 
17. ^ "Leahy again demands U.S. attorney info". Earth Times. http://www.earthtimes.org/articles/show/150510.html. Retrieved 2008-11-30. 
18. ^ "Rove ignores committee's subpoena, refuses to testify". CNN. http://www.cnn.com/2008/POLITICS/07/10/rove.subpoena/index.html?iref=mpstoryview. Retrieved 2008-07-10. 
19. ^ Henriques, Diana (February 4, 2009), "Anger and Drama at a House Hearing on Madoff", The New York Times, http://www.nytimes.com/2009/02/05/business/05madoff.html?_r=1&scp=7&sq=andy%20vollmer&st=cse 
20. ^ ^{a b c d e} Jamieson, Dan (February 4, 2009), "SEC officials dodge questions; one claims privilege", InvestmentNews, http://www.investmentnews.com/apps/pbcs.dll/article?AID=/20090204/REG/902049977 
21. ^ Ahrens, Frank (February 5, 2009), "Lawmakers Sink Teeth Into the SEC: Agency Mocked for Not Catching Madoff", The Washington Post: D01, http://www.washingtonpost.com/wp-dyn/content/article/2009/02/04/AR2009020403399.html 
22. ^ Acting General Counsel Andrew Vollmer to Leave SEC. Washington, D.C.: U.S. Securities and Exchange Commission. Feb. 18, 2009. http://sec.gov/news/press/2009/2009-28.htm. Retrieved 6 March 2009. 

External links

• Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments, Congressional Research Service, April 16, 2008

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