What is executive privilege?

Presidents have used executive privilege for various reasons.
Presidents have used executive privilege for various reasons.
A White House spokeswoman was asked this week if President Donald Trump would allow former FBI Director James Comey to testify before a Senate committee -- or, would the president invoke executive privilege?

    It’s a question fraught with controversy. To recap: Trump fired Comey on May 9.The termination letter mentioned a memo by U.S. Justice Department officials criticizing Comey’s handling of the investigation into the use of a private email server by former Secretary of State Hillary Clinton, then a presidential candidate.
    But Trump subsequently offered a different explanation during an interview with NBC News. The president said he had planned to fire Comey even before the Justice Department memo. In elaborating on his thoughts, he referenced an FBI probe into whether there was coordination between his campaign and Russian officials in connection with hacking during the 2016 presidential election. "I said to myself, I said, you know, this Russia thing with Trump and Russia, is a made up story," Trump said during the interview. "It's an excuse by the Democrats for having lost an election that they should have won."
     So now, will the president use executive privilege to block the former FBI director's testimony?
    “The president’s power to exert executive privilege is very well established,” said White House spokeswoman Sarah Huckabee-Sanders, questioned during a June 5 press briefing. Reading from a prepared statement, she continued, “However, in order to facilitate a swift and thorough examination of the facts sought by the Senate’s Intelligence Committee, President Trump will not exert executive privilege regarding James Comey’s scheduled testimony.”
     Questions about executive privilege also came up during the committee's hearing Wednesday, when four intelligence officials were repeatedly questioned about their conversations with Comey. But what is executive privilege? And are there limitations as to when it can be used? Here are five questions, along with links and resources for further study.

What is executive privilege? It is “the right of the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public,” wrote Mark J. Rozell, of the School of Policy and Government at George Mason University, in a 1999 Minnesota Law Review article. 
    Historically, presidents have used executive privilege in different ways, according to a 1983 article in the Duke Law Journal. Using categories described by Laurence Tribe, a Harvard Law School professor, the article explained, "First, presidents have invoked executive privilege in order to protect military or diplomatic secrets. Second, the law of evidence includes an informer's privilege--'the government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.' Third, courts recognize a privilege extending to 'intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'"  

Is executive privilege guaranteed by the U.S. Constitution? In a word, no. An article on the National Constitution Center’s website puts it this way: “One of the great constitutional myths is the principle of executive privilege. Though the term is not explicitly mentioned in the Constitution, every president has called upon it when necessary.”

Which president was the first to argue that he could withhold something from Congress? George Washington (seriously). During Washington’s administration, one of his old soldier buddies, Gen. Arthur St. Clair, was commander of the American army assigned to defeat native tribes north of the Ohio River, recounts the website for Washington’s home, Mount Vernon. It was a total disaster. Warriors killed or wounded at least 900 of St. Clair's soldiers. Congress wanted an explanation, and according to the Mount Vernon website: “They sought records and testimony from White House officials. Washington and his cabinet agreed that a president had the right to refuse these requests in the name of national security.”
    Washington made a similar argument when the House of Representatives wanted information regarding the Jay Treaty. But despite his reluctance, he eventually relented in both cases, according to the National Constitution Center’s account. 

Who coined the term executive privilege? It dates to the Eisenhower administration. In 1954, President Dwight Eisenhower wrote a letter explaining his rationale for withholding information from the Senate Committee on Government Operations. At the time, Eisenhower was attempting to protect his advisers from Sen. Joseph McCarthy, R-Wis., who had been leading an investigation of communist subversion in government.
    A March 2, 1954, memo by Attorney General Herbert Brownell -- released with Eisenhower’s letter -- specifically used the term privilege this way: “For over 150 years . . . our presidents have established, by precedent, that they and members of their cabinet and other heads of executive departments have an undoubted privilege and discretion to keep confidential, in the public interest, papers and information which require secrecy.”

Are there limitations as to when a president can use executive privilege? Yes, as President Richard Nixon discovered. Nixon attempted to use executive privilege to protect himself, along with a circle of advisers, during the investigation into the 1972 break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington. Famously, Nixon did not wish to turn over tapes of conversations at the White House. The case went to the Supreme Court, and in its decision,  U.S. v. Nixon, the court found that executive privilege is constitutional, “but the court also held that it is not all-encompassing,” recounts the National Constitution Center. “If requested documents and testimonies are a key part of an investigation, then they must be brought forward. Therefore, the Watergate tapes were turned over to the special prosecutor.”
     Here are two excerpts from the Supreme Court’s decision, written by then Chief Justice Warren Burger:

   “Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a president's powers, it is constitutionally based.
   "The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right ‘to be confronted with the witnesses against him’ and ‘to have compulsory process for obtaining witnesses in his favor.’ Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced. In this case, we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of the president's responsibilities against the inroads of such a privilege on the fair administration of criminal justice.   
   "…We conclude that, when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

     To know more:


     Three presidents and the price of impeachment

     Firing of FBI director evokes history

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