What Is Executive Privilege?

Questions surrounding executive privilege have dominated the headlines from the Special Counsel’s investigation into Russian election interference to the improper addition of a citizenship question to the census.  Let’s start with the basics.  What is executive privilege? 

At its core, executive privilege enables the President of the United States and other executive branch officials to withhold certain confidential communications in response to subpoenas or legislative and judicial oversight when revealing that information would impair important government functions. Although the concept of executive privilege was first invoked during the presidency of George Washington and the specific term was first used by President Dwight Eisenhower, neither the concept nor the term is defined or even mentioned in the U.S. Constitution. 

Executive privilege encompasses a wide range of evidentiary and substantive privileges.  Traditionally, presidents have claimed privilege over both attorney work product and attorney-client communications and the state secrets privilege has been asserted to protect sensitive military or national security information.  The deliberative process privilege has its origins in common law and protects communications from executive branch officials that predate the adoption of a particular policy and directly implicate the executive branch decision-making process. 

Alternatively, the presidential communications privilege protects communications to and from the President and via senior advisors in the Office of the President.  The presidential communications privilege arises from the separation of powers doctrine and reflects the need for extreme candor between a president and his or her closest advisors.  In U.S. v. Nixon, then Chief Justice Warren Burger recognized “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 later clarified that the presidential communications privilege was limited to communications made when the President was performing the official duties and responsibilities of the office “in the process of shaping policies and making decisions.” 

Similar to all communications privileges, executive branch communications are not protected from disclosure if they are made for the purpose of perpetrating a crime or fraud.  In a Clinton-era decision regarding an investigation into misconduct by the Secretary of Agriculture, Judge Wald explained that the deliberative process privilege “disappears altogether when there is any reason to believe governmental misconduct occurred.” 

The presidential communications privilege provides an additional layer of protection beyond the deliberative process privilege because the party attempting to overcome the privilege “must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials.”  However, it is still a qualified privilege and not an absolute bar to disclosure.  In Nixon, the Court held that President Nixon’s interest in the confidentiality of his own taped communications could not prevail over “historic commitment to the rule of law.”

Interestingly, there is very little case law on executive privilege and its limits and definitions remain a complicated question.  Historically, executive privilege disputes have been resolved outside the courts through dialogues, negotiations, and compromises between the legislative and executive branches.  In the current political climate, compromise could be challenging, so we may need to look to the courts for further guidance on this topic.