Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments
Abstract
Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution. The vast majority of these disputes are resolved through political negotiation and accommodation. In fact, it was not until the Watergate-related lawsuits in the 1970s seeking access to President Nixons tapes that the existence of a presidential confidentiality privilege was judicially established as a necessary derivative of the Presidents status in our constitutional scheme of separated powers. There have been only four cases involving information access disputes between Congress and the executive, and two of these resulted in decisions on the merits. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege. Under those precedents, the privilege, which is constitutionally rooted, could be invoked by the President when asked to produce documents or other materials or information that reflect presidential decision making and deliberations that he believes should remain confidential. If the President asserts the privilege, the materials become presumptively privileged. The privilege, however, is qualified, not absolute, and can be overcome by an adequate showing of need. Finally, while reviewing courts have expressed reluctance in balancing executive privilege claims against a congressional demand for information, they have acknowledged they will do so if the political branches have tried, in good faith, but failed to reach an accommodation. Supreme Court decisions have left considerable gaps in the law of presidential privilege.
Document Details
- Document Type
- Technical Report
- Publication Date
- Dec 15, 2014
- Accession Number
- AD1172237
Entities
People
- Todd Garvey
Organizations
- Library of Congress