Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the Executive Branch from the Legislative or Judicial Branch of the government. While the Constitution does not expressly confer upon the Executive Branch any such privilege, the Supreme Court has held that executive privilege derives from the constitutional separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution.1 Although there are various and distinct components to executive privilege,2 the privilege’s foundation lies in the proposition that in making judgments and reaching decisions, the President and his advisors must be free to discuss issues candidly, express opinions, and explore options without fear that those deliberations will later be made public.3

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President in the course of exercising its investigatory powers;4 government prosecutors may seek information in the course of investigating and prosecuting crimes;5 and private parties may seek information in the possession of the President for use as evidence in either a criminal or civil proceeding.6 In all of these contexts, the courts have generally assessed any asserted privilege by weighing the President’s need for confidentiality against the interests of the party seeking the information.7

Today, it is apparent that executive privilege is qualified rather than absolute. For the vast majority of U.S. history, however, the existence and appropriate scope of the privilege was uncertain and nearly untouched by the courts.8 Chief Justice John Marshall referred to the confidentiality of presidential communications in Marbury v. Madison and during the treason trial of former Vice President Aaron Burr,9 but in “neither instance [ ] was Marshall forced to definitively decide whether such a presidential privilege existed and if so, in what form.” 10 In fact, the judiciary’s involvement in addressing the privilege’s use in resisting disclosure in the face of either judicial or legislative subpoenas did not begin in earnest until the 1970s and the Administration of Richard Nixon.11 Prior to the Nixon era, executive privilege’s contours were defined, if at all, by historical practice and the actions and interpretations of Congress and the President. And with little further explication coming from the Supreme Court since, the Nixon era remains the defining era of judicial consideration of the privilege.

This lack of judicial involvement is most pronounced in the context of executive privilege disputes between Congress and the President. The Supreme Court has never directly considered the application of executive privilege in the context of a congressional investigation.12 Lower federal court decisions are similarly scarce. The only appellate-level decision to reach the merits of an executive privilege dispute between Congress and a sitting President occurred nearly 50 years ago.13 In light of this near judicial vacuum, the historical actions and interpretations of the branches necessarily play a significant role in establishing the meaning of executive privilege.

Footnotes

1

See United States v. Nixon, 418 U.S. 683, 711 (1974) ( “Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.” ).

2

See Todd Garvey, Cong. Rsch. Serv., R47102, Executive Privilege and Presidential Communications: Judicial Principles (2022).

3

Id. at 708.

4

See, e.g., S. Select Comm. On Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).

5

See, e.g., Nixon, 418 U.S. at 686.

6

See, e.g., Dellums v. Powell, 561 F.2d 242 (D.C. Cir. 1977).

7

Nixon, 418 U.S. at 707.

8

See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977).

9

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 169–70 (1803) (suggesting that “[t]he intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation” ); United States v. Burr, 25 F. Cas. 30, 37 (noting that if a letter to President Jefferson “does contain any matter which it would be imprudent to disclose, which it is not the wish of the executive to disclose, such matter, if it be not immediately and essentially applicable to the point, will, of course, be suppressed” ).

10

In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997).

11

Id. at 739–40 ( “[I]t was not until the 1970s and Watergate-related lawsuits seeking access to President Nixon’s tapes as well as other materials that the existence of the presidential privilege was definitively established as a necessary derivation from the President’s constitutional status in a separation of powers regime.” ); see also Id. at 742 ( “These lawsuits, referred to generically as the Nixon cases, remain a quarter century later the leading—if not the only—decisions on the scope of the presidential communications privilege.” ).

12

The Supreme Court recently issued an opinion addressing congressional subpoenas for presidential records, but that case did not involve an assertion of executive privilege. See Trump v. Mazars USA, LLP, No. 19-760, slip op. at 5 (U.S. July 9, 2020) ( “The President did not, however, resist the subpoenas by arguing that any of the requested records were protected by executive privilege.” ); Id. at 2 ( “We have never addressed a congressional subpoena for the President’s information.” ).

13

See S. Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). The D.C. Circuit recently reached the merits of a dispute between the House and a former President. Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021), cert. denied, No. 21A272, slip op. (U.S. Jan. 20, 2022) (2022).