Originalism is not merely a theory of how the Constitution should be preserved but also of how, precisely, it should change.
What does Executive privilege protect?
Executive privilege is the constitutional principle that permits the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public. This presidential power is controversial because it is nowhere mentioned in the U.S. Constitution. That fact has led some scholars (Berger 1974; Prakash, 1999) to suggest that executive privilege does not exist and that the congressional power of inquiry is absolute. There is no doubt that presidents and their staffs have secrecy needs and that these decision makers must be able to deliberate in private without fear that every utterance may be made public. But many observers question whether presidents have the right to withhold documents and testimony in the face of congressional investigations or judicial proceedings.
Executive privilege is an implied presidential power that is recognized by the courts, most famously in the U.S. v. Nixon (1974) Supreme Court case. There are generally four areas that an executive branch claim of privilege is based: 1) presidential communications privilege; 2) deliberative process privilege; 3) national security, foreign relations or military affairs, and 4) an ongoing law enforcement investigation. In the current controversy over congressional access to Department of Justice documents pertaining to the Fast & Furious scandal investigation, the president and Attorney General Eric Holder are relying on the deliberative process privilege and also the ongoing law enforcement investigation defense.
Not all presidents have used this power for the public good, but instead some have claimed executive privilege to try to conceal wrongdoing or politically embarrassing information. In the controversy over President Barack Obama’s claim of executive privilege over DOJ documents, critics suggest that his action constitutes such an improper use of that power. The president and his defenders argue that he is instead protecting a core presidential function by stopping Congress from intruding into areas where it does not belong.
No president ever used the phrase “executive privilege” until the Dwight D. Eisenhower administration. The phrase was not a part of the common language. Nonetheless, all presidents going back to George Washington have exercised some form of what we today call executive privilege. The first use of this authority occurred in 1792, when Congress demanded from the Washington administration information regarding the failure of a U.S. military expedition. Congress specifically requested White House records and testimony from presidential staff familiar with the event. Washington convened his Cabinet to discuss whether a president possessed the authority to deny information to Congress. The Cabinet and the president agreed that the chief executive indeed had such authority when exercised in the public interest. The president communicated this view to Congress in writing. Washington eventually decided to cooperate with the congressional inquiry and turned over the requested materials. But he had first laid the groundwork for the presidential use of executive privilege.
Washington established the proper standard – that presidential secrecy must be used only in the service of the public interest. The evolution of the exercise of executive privilege and of the legal decisions governing its use make it clear that this is a legitimate presidential power when used appropriately. Nonetheless, President Richard M. Nixon gave executive privilege a bad name when he used it to try to conceal information about the Watergate scandal.
Specifically, Nixon claimed executive privilege to prevent having to release the White House tapes that contained incriminating evidence of his participation in a cover-up of illegal activity by administration officials. Nixon claimed that concealing the tapes was required to protect the national security, but ultimately when the Supreme Court ruled against the president it became clear that he had been trying to protect himself from incriminating information rather than promoting the public interest. In the U.S. v. Nixon case the Supreme Court unanimously ruled that executive privilege is a legitimate presidential power, though not an absolute one. Indeed, in a criminal investigation where evidence was needed to secure the pursuit of justice, the constitutional balancing test weighed in favor of turning over the White House tapes and against the claim of privilege.
During the Bill Clinton administration there were numerous executive privilege battles including, most prominently, during the scandal in 1998-1999 that led to the impeachment of the president. During the investigation of the president, Clinton’s attorneys made the case that presidential communications are privileged and that therefore certain White House aides could not be called to testify before the Office of Independent Counsel (OIC). The federal judge ruled that although presidents have legitimate needs of confidentiality, the OIC had made a compelling showing of need for testimony to properly conduct a criminal investigation. Clinton lost in his effort to prevent the testimony of his aides, but the judge did reaffirm the legitimacy of executive privilege.
Most presidents have exercised executive privilege sparingly and judiciously. Indeed, because executive privilege has been associated in the public’s mind with political scandals, most modern presidents have been reluctant to use that power except when they felt it absolutely necessary to do so. Some presidents have concealed their use of executive privilege by claiming other constitutional bases for the right to withhold information from Congress or the courts. Particularly in the early post-Watergate years presidents were very reluctant to utter the words “executive privilege” because of its association with the Nixon scandals.
President George W. Bush was not so reluctant to claim executive privilege. Bush moved on several fronts to reestablish executive privilege as a customary presidential power. Yet his efforts were highly controversial. In one case, he expanded the scope of executive privilege for former presidents, and even to allow them to transfer this constitutional authority under Article II to designated family representatives. Bush issued an executive order in 2001 that effectively revised the intent of the Presidential Records Act of 1978 in a way that made it harder for the public to get access to the papers of past presidential administrations.
In another case, the Bush Administration tried to expand executive privilege to protect Department of Justice (DOJ) documents from investigations long ago closed. This claim was particularly bothersome because the longstanding practice was to claim a right to withhold information about ongoing investigations that could be compromised by public disclosure.
The most significant Bush-era executive privilege controversy surrounded the president’s efforts to prevent the release of subpoenaed documents and then testimony of certain White House aides regarding the politically motivated firings of several U.S. attorneys. The president claimed absolute immunity for White House aides, although the U.S. district court of D.C. ultimately rejected that argument.
These uses of executive privilege by the Bush (43) Administration showcase how the political give-and-take of our system of separated powers often resolves such controversies. In the former example, the president initially prevailed in large part due to a tepid response from Congress and a lack of significant opposition outside of the academic community. President Obama eventually overturned the Bush executive order. In the second example, a spate of negative publicity and aggressive efforts by a congressional committee to get access to the disputed documents resulted in the administration agreeing to turn over most of the materials it had tried to conceal. Finally, regarding the U.S. attorneys firings controversy, the parties eventually reached an agreement to allow for non-public testimony by some of the key Bush White House officials.
Like other constitutional powers, executive privilege is subject to a balancing test. Just as presidents and their advisers have needs of confidentiality, Congress must have access to executive branch information to carry out its constitutionally based investigative function. Therefore, any claim of executive privilege must be weighed against Congress’s legitimate need for information to carry out its own constitutional role. And of course, the power of inquiry is not absolute, whether it is wielded by Congress or by prosecutors.
In our constitutional system, the burden is on the executive to prove that it has the right to withhold information and not on Congress to prove that it has the right to investigate. Executive privilege should be reserved for the most compelling reasons. It is not a power that should be routinely used to deny those with compulsory power the right of access to information. Short of a strong showing by the executive branch of a need to withhold information, Congress’s right to investigate must be upheld. To enable the executive to withhold whatever information it wants would be to establish a bad constitutional precedent – one that would erode a core function of the legislative branch and upset the delicate balance of powers in our system.
There have been proposals in Congress to develop a clear statutory definition of executive privilege. Yet no such legislation has ever passed and it is unlikely that such an effort would reduce interbranch conflicts over access to information. To date the branches have relied on their existing constitutional powers to negotiate disputes over assertions of executive privilege. For the most part the system has worked well without a legislative solution.
Raoul Berger, 1974. Executive Privilege: A Constitutional Myth. Cambridge: Harvard University Press.
Saikrishna Bangalore Prakash, 1999. “A Comment on the Constitutionality of Executive Privilege”, University of Minnesota Law Review (May).
Mark J. Rozell, 2010. Executive Privilege: Presidential Power, Secrecy and Accountability. Lawrence, KS: University Press of Kansas (3d edition).