Executive Privilege (Update)

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EXECUTIVE PRIVILEGE (Update)

The term "executive privilege" has been applied to explain and define a variety of immunities claimed by the President to resist inquiries or impositions by other branches of government.

In the broadest sense, the term covers claims by the President that he is not subject to any type of judicial process while serving in his office. However, whether or not the President can be indicted and tried for a criminal offense while in office (an issue that has yet to be resolved), the Supreme Court held in clinton v. jones (1997) that he can be required to appear and answer as a defendant and to testify in a civil case for acts committed before he became President. A President can also be ordered to respond to a subpoena for tapes (and documentary materials) in a criminal case, as the Court held in united states v. nixon (1974). Presumably he could also be obliged to give testimony in such cases, so long as one of the narrower testimonial privileges described below does not specifically apply. When President william j. clinton was asked to give testimony before the Monica Lewinsky grand jury convened by independent counsel Kenneth Starr, he chose to appear voluntarily rather than test the extent of his testimonial immunity.

On the other hand, in nixon v. fitzgerald (1982), the Court held that Presidents cannot be sued for damages for acts taken while in office.

In the narrowest sense, executive privilege covers only specific testimonial privileges under which the President may refuse to produce documents or permit testimony by members of the executive department to either Congress or the courts on matters relating to the operation of that branch.

With respect to resisting inquiries by Congress, Presidents going back to george washington have refused to disclose materials relating to the interior workings of the presidential office. Presidents john adams, thomas jefferson, and andrew jackson similarly asserted the privilege in the nineteenth century and every President since franklin d. roosevelt did so in our time.

When privilege is asserted before Congress, the only weapon available to the legislative branch is to vote a contempt citation and seek to obtain penalties or a compliance order before the courts. Generally, a compromise is then worked out between the two branches. In the rare instances that an assertion of executive privilege before Congress was presented to the courts, generally the executive department's claim has been upheld or the case has been held to lack justiciability.

Executive privilege has also been asserted by the President or executive department members in judicial proceedings, generally in criminal cases. Commentators and the courts have noted that the term has been applied in at least five separate situations. Included in this category are the "state secrets" privilege covering national security matters, and the privilege to withhold the names of informers or information relating to pending criminal investigations.

Another recognized privilege is the "presidential communications" privilege established by the Court in United States v. Nixon. Under that doctrine, communications to and from the President before and after a presidential decision has been made are ordinarily immune from process, based on separation of powers concerns. Breach of that privilege is possible only after a compelling showing of need by the person seeking the information.

The most frequently invoked form of executive privilege is the "deliberative process" privilege. Under that doctrine, the President, on behalf of any executive branch officer, may refuse to disclose recommendations and deliberations comprising part of the process by which governmental decisions and policies are formulated. To invoke this privilege, the President must show that the material sought to be discovered related to communications made before a governmental decision was made (it was "predecisional") and that it related to the method chosen or advice given to arrive at the decision.

Even if such a showing is made, the privilege can be overcome by a showing of need, less than that required to breach the "presidential communications" privilege. Among the considerations that must be balanced by the courts are the importance of the evidence, the availability of alternate sources of information, the significance of the litigation and the extent of government misconduct sought to be examined.

New assertions of executive privilege were made during the Monica Lewinsky investigation involving President Clinton. But the courts rejected any claim of privilege by U.S. Secret Service agents or by government lawyers asserting an attorney–client privilege not to respond to questions involving possible criminal activity within their knowledge.

Leon Friedman
(2000)