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In the United States government, 'executive privilege' is the power (reserve power) claimed by the President of the United States and other members of the executive branch to resist certain search warrants and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned in the United States Constitution, but some consider 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 it can be invoked 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

Washington sets precedent

Jefferson and the Burr trial

Eisenhower and McCarthy

''US v. Nixon''

Clinton Administration

George W. Bush Administration

References

Washington sets precedent

In 1796, President George Washington refused to comply with a request by the House of Representatives for documents which were relating to the negotiation of the then-recently adopted Jay Treaty with England. 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.

Jefferson and the Burr trial

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.

Eisenhower and McCarthy

During the Army-McCarthy hearings in 1954, President Dwight D. Eisenhower invoked executive privilege by refusing to turn over to Senator Joseph McCarthy's investigatory Committee the notes of Eisenhower's meetings with members of the United States Army, "claiming that matters of national security might be breached if administration officials were forced to testify under oath." However, this was merely a ruse to destroy Senator McCarthy since Eisenhower invoked executive privilege only just before McCarthy was preparing to defend himself against accusations during the hearings.^[2][3]

''US v. Nixon''

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 however rejected the notion that the President has an "absolute privilege." 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.

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 Clinton aides could be called to testify in the Lewinsky scandal.^[4]
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," independent counsel Kenneth W. 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

President George W. Bush first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno,[1] the scandal involving Federal Bureau of Investigation (FBI) misuse of mob informants Whitey Bulger and Stephen Flemmi in Boston, and Justice Department deliberations about President Bill Clinton's fund-raising tactics, in December 2001.^[5]
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."^[6]
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,[2] 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 testimony of Sara M. Taylor and Harriet E. Miers. Further, White House counsel Fred 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.^[7][8]
On July 13, less than a week after claiming executive privilege for Miers and Taylor, White House counsel Fred Fielding effectively claimed the privilege once again, this time in relation to documents related to the death of Special Forces soldier 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.^[9]
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, White House counsel Fred 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...."^[10]

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. ''American Experience'', "Presidential Politics." "Dwight D. Eisenhower, 34th President." , at Public Broadcasting System.com
3. Who Killed Joe McCarthy?, , , Ewald, Jr., William Bragg, Simon and Schuster, 1984, ISBN 0-671-44946-X
4. Baker, Peter; and Schmidt, Susan. "President is Denied Executive Privilege" ''Washington Post'', May 6, 1998.
5. Bush Claims Executive Privilege in Response to House Inquiry
6. Holding, Reynolds. ''Time'', March 21, 2007. "The Executive Privilege Showdown"
7. House inches toward constitutional showdown with contempt vote
8.
9. "White House Rebuffs Congress on Tillman Papers"
10. Bush won't let aide Rove testify to Congress