In the
United States governmentThe federal government of the United States is the central government entity established by the United States Constitution, which shares sovereignty over the United States with the governments of the individual U.S. states. The federal government has three branches: the legislative, executive, and...
,
executive privilege is the power claimed by the
President of the United StatesThe President of the United States is the head of state and head of government of the United States and is the highest political official in the United States by influence and recognition...
and other members of the
executive branch}}In the study of political science the executive branch of government has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the democratic idea of the separation of powers .In many...
to resist certain
subpoenaA subpoena is a writ issued by a court that commands the presence of a witness to testify, under a penalty for failure.Subpoenas are associated with common law legal systems.There are two common types of subpoena:...
s and other interventions by the
legislativeA legislature is a type of deliberative assembly with the power to pass, amend and repeal laws. The law created by a legislature is called legislation or statutory law...
and
judicial branchThe judiciary is the system of courts which interprets and applies the law in the name of the sovereign or state. The judiciary also provides a mechanism for the resolution of disputes...
es of government. The concept of executive privilege is not mentioned explicitly in the
United States ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
, but the
Supreme Court of the United StatesThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
ruled it to be an element of the
separation of powersSeparation of powers is the political doctrine under which the executive, legislative and judicial branches of government are kept distinct, to prevent abuse of power. This U.S...
doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.
The
Supreme CourtThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
confirmed the legitimacy of this doctrine in
United States v. NixonUnited States v. Nixon, , was a landmark United States Supreme Court decision. It was a unanimous 8-0 ruling involving President Richard Nixon and was important to the late stages of the Watergate scandal. It is considered a crucial precedent limiting the power of any U.S. president.Chief Justice...
, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a "sufficient showing" that the "Presidential material" is "essential to the justice of the case."(418 U.S. at 713-14). Chief Justice Burger further stated that executive privilege would most effectively apply 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 CongressThe United States Congress is the bicameral legislature of the federal government of the United States of America, consisting of two houses, the Senate and the House of Representatives. Both senators and representatives are chosen through direct election....
and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.
Early precedents
Executive privilege is a specific instance of the more general common-law principle of
deliberative process privilegeDeliberative process privilege is the common-law principle that the internal processes of the executive branch of a government are immune from normal disclosure or discovery in civil litigations, Freedom of Information Act requests, etc....
and is believed to trace its roots to the English Crown Privilege.
In the context of privilege assertions by US Presidents, "In 1796, President George Washington refused to comply with a request by the House of Representatives for documents related to the negotiation of the then-recently adopted
Jay TreatyThe Jay Treaty, also known as Jay's Treaty and the Treaty of London of 1794, was a treaty between the United States and Great Britain which averted war, solved many issues left over from the American Revolution, and opened ten years of largely peaceful trade in the midst of the French Revolutionary...
with the
Kingdom of Great BritainThe Kingdom of Great Britain, also known as the United Kingdom of Great Britain, was a sovereign state in northwest Europe, in existence from 1707 to 1801...
. 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."
President
Thomas JeffersonThomas Jefferson was the third President of the United States , the principal author of the Declaration of Independence , and one of the most influential Founding Fathers for his promotion of the ideals of republicanism in the United States...
continued the precedent for this in the trial of
Aaron BurrAaron Burr, Jr. was an American politician, Revolutionary War participant, and adventurer. He served as the third Vice President of the United States , under Thomas Jefferson....
for
treasonIn law, treason is the crime that covers some of the more serious acts of disloyalty to one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife...
in 1807. Burr asked the court to issue a
subpoena duces tecumIn the United States legal system, a subpoena duces tecum is specific form of a subpoena issued by a court ordering the parties named to appear and produce tangible evidence for use at a hearing or trial.It is similar to subpoena ad testificandum In the United States legal system, a subpoena...
to compel Jefferson to provide his private letters concerning Burr.
Chief JusticeThe Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States...
John MarshallJohn Marshall was an American statesman and jurist who shaped American constitutional law and made the Supreme Court a center of power. Marshall was Chief Justice of the United States, serving from February 4, 1801, until his death in 1835...
, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the
Sixth AmendmentThe Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions in federal courts...
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.
Modern exercises
During the period of 1947-49, several major security cases became known to Congress. There followed a series of investigations, culminating in the famous
HissAlger Hiss was an American lawyer, civil servant, businessman, author and lecturer. He was involved in the establishment of the United Nations both as a U.S. State Department and UN official...
-
ChambersWhittaker Chambers born Jay Vivian Chambers and also known as David Whittaker , was an American writer and editor. A Communist Party USA member and Soviet spy, he later renounced communism and became an outspoken opponent...
case of 1948. At that point, the
TrumanHarry S. Truman was the 33rd President of the United States . As President Franklin D. Roosevelt's third vice-president and the 34th Vice President of the United States, he succeeded to the presidency on April 12, 1945, when President Roosevelt died less than three months after beginning his...
Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems. Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters. Investigation of the State Department and other cases was stymied and the matter left unresolved.
During the Army–McCarthy hearings in 1954,
EisenhowerDwight David "Ike" Eisenhower was a five-star general in the United States Army and the 34th President of the United States, from 1953 until 1961. During the Second World War, he served as Supreme Commander of the Allied forces in Europe, with responsibility for planning and supervising the...
used the claim of executive privilege to forbid the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Department of Defense employees were also instructed not to testify on any such conversations or produce any such documents or reproductions. This was done to refuse the McCarthy Committee subpoenas of transcripts of monitored telephone calls from Army officials, as well as information on meetings between Eisenhower officials relating to the hearings. This was done in the form of a letter from Eisenhower to the Department of Defense and an accompanying memo from Eisenhower Justice. The reasoning behind the order was that there was a need for "candid" exchanges among executive employees in giving "advice" to one another. In the end, Eisenhower would invoke the claim 44 times between 1955 and 1960.
U.S. v. Nixon
The Supreme Court addressed 'executive privilege' in
United States v. NixonUnited States v. Nixon, , was a landmark United States Supreme Court decision. It was a unanimous 8-0 ruling involving President Richard Nixon and was important to the late stages of the Watergate scandal. It is considered a crucial precedent limiting the power of any U.S. president.Chief Justice...
, the 1974 case involving the demand by
WatergateThe Watergate scandal was a political scandal in the United States in the 1970s. Named for the Watergate office complex in Washington, D.C., effects of the scandal ultimately led to the resignation of Richard Nixon, President of the United States, on August 9, 1974...
special prosecutorA special prosecutor generally is a lawyer from outside the government appointed by an attorney general or Congress to investigate a government official for misconduct while in office. A reasoning for such an appointment is that the governmental branch or agency may have political connections to...
Leon JaworskiLeonidas "Leon" Jaworski was the Special Prosecutor during the Watergate Scandal...
that President
Richard NixonRichard Milhous Nixon was the 37th President of the United States and is the only president to resign the office. He was also the 36th Vice President of the United States ....
produce the audiotapes of conversations he and his colleagues had in the
Oval Office| |-| |-| |-| |-| |-| |-| |-| |-| |}The Oval Office is the official office of the President of the United States. Created in 1909 as part of an overall expansion of the West Wing of the White House during the administration of William Howard Taft, the office was inspired by the elliptical Blue Room...
of the
White HouseThe White House is the official residence and principal workplace of the President of the United States. Located at 1600 Pennsylvania Avenue NW in Washington, D.C., it was built between 1792 and 1800 of white-painted Aquia sandstone in the late Georgian style and has been the residence of every...
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.
However, the Supreme Court rejected the notion that the President has an "absolute privilege." The Supreme Court stated: "To read the
Article IIArticle Two of the United States Constitution creates the executive branch of the government, comprising the President and other executive officers.-Clause 1: Executive power:...
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 IIIArticle Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States along with lower federal courts established pursuant to legislation by Congress....
." 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 ClintonWilliam Jefferson "Bill" Clinton was the 42nd President of the United States from 1993 to 2001. He was the third-youngest president; only Theodore Roosevelt and John F. Kennedy were younger when entering office...
became the first President since Nixon to assert executive privilege and lose in court, when a Federal judge ruled that Clinton aides could be called to testify in the
Lewinsky scandalThe Lewinsky scandal was a political sex scandal emerging from a sexual relationship between United States President Bill Clinton and a 22-year-old White House intern, Monica Lewinsky. The news of this extra-marital affair and the resulting investigation eventually led to the impeachment of...
.
Later, Clinton exercised a form of negotiated executive privilege when he agreed to testify before the grand jury called by
Independent CounselUnited States Office of the Independent Counsel was an independent prosecutor — distinct from the Attorney General of the United States Department of Justice — that provided reports to the Congress under . The office was terminated in 1999 and replaced by the U.S...
Kenneth StarrKenneth Winston Starr is an American lawyer, a former federal Court of Appeals judge and Solicitor General who is most notable for his tenure as Independent Counsel while Bill Clinton was U. S. President...
only after negotiating the terms under which he would appear. Declaring that "absolutely no one is above the law", 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
The George W. Bush administration invoked executive privilege on numerous occasions.
President
George W. BushGeorge Walker Bush was the 43rd President of the United States from 2001 to 2009 and the 46th Governor of Texas from 1995 to 2000....
first asserted executive privilege to deny disclosure of sought details regarding former Attorney General
Janet RenoJanet Wood Reno is the former Attorney General of the United States . She was nominated by President Bill Clinton on February 11, 1993, and confirmed on March 11...
,
http://www.nytimes.com/2007/06/29/washington/29bush.html?ex=1340769600&en=84a2d395fc9d23ec&ei=5088&partner=rssnyt&emc=rss the scandal involving
Federal Bureau of InvestigationThe Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency. The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
(FBI) misuse of organized-crime informants
James J. BulgerJames Joseph Bulger, Jr. — known as "Whitey" Bulger — is a wanted fugitive and alleged leader of the Winter Hill Gang, an Irish-American crime family based in Boston, Massachusetts...
and
Stephen FlemmiStephen Joseph "The Rifleman" Flemmi is an Italian-American former mobster and lieutenant to James J. Bulger in the Boston-based Winter Hill Gang. Beginning in 1965, Flemmi became a top echelon informant for the United States Federal Bureau of Investigation...
in
BostonBoston is the capital and largest city of the Commonwealth of Massachusetts, and is one of the oldest cities in the United States. The largest city in New England, Boston is considered the economic and cultural center of the region and is sometimes regarded as the unofficial "Capital of New England"...
, and Justice Department deliberations about President Bill Clinton's fundraising tactics, in December 2001.
Bush invoked executive privilege "in substance" in refusing to disclose the details of
Vice PresidentThe Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people through the Electoral College to a four-year term...
Dick CheneyRichard Bruce "Dick" Cheney served as the 46th Vice President of the United States from 2001 to 2009 in the administration of George W. Bush....
's meetings with energy executives, which was not appealed by the GAO. In a separate Supreme Court decision in 2004, however, Justice
Anthony KennedyAnthony McLeod Kennedy is an Associate Justice of the U.S. Supreme Court, having been appointed by Republican President Ronald Reagan in 1988...
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."
Further, on June 28, 2007, Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel
Harriet MiersHarriet Ellan Miers is an American lawyer and former White House Counsel. In 2005, she was nominated by President George W. Bush to be an Associate Justice of the U.S...
and former political director
Sara TaylorSara Marie Taylor is a public relations consultant who was the Director of the White House Office of Political Affairs and Deputy Assistant to President George W. Bush from February 2005 to May 30, 2007. A Republican campaign strategist, field operator, pollster, she was one of George W. Bush's...
, 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 testimonies of Taylor and Miers. Furthermore,
White House CounselThe White House Counsel is a staff appointee of the President of the United States.-Role:The Counsel's role is to advise the President on all legal issues concerning the President and the White House...
Fred F. FieldingFred Fisher Fielding is an American lawyer, and held the office of White House Counsel for U.S. Presidents Ronald Reagan and George W. Bush.-Personal life:Fielding was born in Philadelphia and raised in Mechanicsville, Pennsylvania...
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 StaffThe White House Chief of Staff is the highest ranking member of the Executive Office of the President of the United States and a senior aide to the President...
Joshua Bolten for
contempt of CongressContempt of Congress is the act of obstructing the work of the United States Congress or one of its committees. While historically the bribery of a Senator or Representative was considered "contempt of Congress," in modern times a person must refuse to comply with a subpoena issued by a...
.
On July 13, less than a week after claiming executive privilege for Miers and Taylor, Counsel Fielding effectively claimed the privilege once again, this time in relation to documents related to the 2004 death of
Army RangerThe United States Army Rangers are an elite American Special Operations Force capable of conducting direct action operations.United States Army Rangers draw very strongly on the heritage, traditions and ethos of Rogers' Rangers but have no lineage back to that unit. The current U.S. Army Rangers,...
Pat TillmanPatrick Daniel Tillman was an American football player who left his professional sports career and enlisted in the United States Army in May 2002 in the aftermath of the September 11 attacks. He joined the United States Army Rangers and served multiple tours in combat before he was killed by...
. In a letter to the House Committee on Oversight and Government Reform, Fielding claimed certain papers relating to discussion of the
friendly-fireFriendly fire is an expression meaning fire from one's own side or allied forces, as opposed to fire coming from enemy forces, and was a tactic originally adopted by the United States military....
shooting “implicate Executive Branch confidentiality interests” and would therefore not be turned over to the committee.
On August 1, 2007, Bush invoked the privilege for the fourth time in little over a month, this time rejecting a subpoena for
Karl RoveKarl Christian Rove was Senior Advisor and Deputy Chief of Staff to former President George W. Bush until his resignation on August 31, 2007. He has headed the Office of Political Affairs, the Office of Public Liaison, and the White House Office of Strategic Initiatives...
. The subpoena would have required the President's Senior Advisor to testify before the
Senate Judiciary CommitteeThe United States Senate Committee on the Judiciary is a standing committee of the United States Senate, the upper house of the United States Congress...
in a probe over fired federal prosecutors. In a letter to Senate Judiciary Chairman
Patrick LeahyPatrick Joseph Leahy is the senior United States Senator from Vermont. He is a member of the Democratic Party, the first and only Democratic United States Senator in Vermont's history, the current chairman of the Senate Judiciary Committee, and has the distinction of being the first and only...
, 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...."
Leahy claimed that President Bush was not involved with the employment terminations of U.S. attorneys. Furthermore, he asserted that the president's executive privilege claims protecting Josh Bolten, and Karl Rove are illegal. The Senator demanded that Bolten, Rove, Sara Taylor, and
J. Scott JenningsJeffery Scott Jennings , a United States political appointee in the administration of George W. Bush. The president appointed Jennings to the position of Special Assistant to the President and Deputy Director of Political Affairs on October 17, 2005...
comply "immediately" with their subpoenas, presumably to await a further review of these matters. This development paved the way for a Senate panel vote on whether to advance the citations to the full Senate. "It is obvious that the reasons given for these firings were contrived as part of a cover up and that the stonewalling by the White House is part and parcel of that same effort", Leahy concluded about these incidents.
As of July 17, 2008, Rove is still claiming executive privilege to avoid a congressional subpoena. Rove's lawyer writes that his client is "constitutionally immune from compelled congressional testimony."
House Investigation of the SEC
Leaders of the U.S. Securities and Exchange Commission testified on February 4, 2009 before the
United States House Committee on Financial ServicesThe United States House Committee on Financial Services oversees the entire financial services industry, including the securities, insurance, banking, and housing industries. The Committee also oversees the work of the Federal Reserve, the United States Department of the Treasury, the U.S...
subcommittee including
Linda Chatman ThomsenLinda Chatman Thomsen was the Director of the Division of Enforcement for the U.S. Securities and Exchange Commission from 2005 until early 2009. Since arriving at the SEC in 1995, she has worked under four SEC Chairmans: Arthur Levitt, Harvey Pitt, William H. Donaldson, and Christopher Cox. ...
S.E.C. enforcement director, acting
General CounselA general counsel is the chief lawyer of a legal department, usually in a corporation or government department. The term is most used in the United States...
Andy VollmerAndrew Neill Vollmer is an American lawyer, currently a partner in the securities department at law firm WilmerHale. Prior to April 2009, he had been Deputy General Counsel for the United States Securities and Exchange Commission and acting General Counsel...
, Andrew Donohue, Erik Sirri, and Lori Richards and Stephen Luparello of
FINRAIn the United States, the Financial Industry Regulatory Authority, Inc., or FINRA, is a private corporation that acts as a self-regulatory organization . FINRA is the successor to the National Association of Securities Dealers, Inc. . Though sometimes mistaken for a government agency, FINRA is...
. The subject of the hearings were on why the SEC had failed to act when
Harry MarkopolosHarry M. Markopolos or Harry Markopoulos is a former securities industry executive turned independent financial fraud investigator for institutional investors and others seeking forensic accounting expertise...
, a private fraud investigator from Boston alerted the Securities and Exchange Commission detailing his persistent and unsuccessful efforts to get the SEC to investigate
Bernard MadoffBernard Lawrence "Bernie" Madoff is an American convict, who was a financier, and Chairman of the NASDAQ stock exchange...
, beginning in 1999. Vollmer claimed
executive privilegeIn the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government...
in declining to answer some questions. Subcommittee chairman
Paul E. KanjorskiPaul E. Kanjorski is an American Democratic politician from the U.S. state of Pennsylvania, currently representing Pennsylvania's 11th congressional district in the United States House of Representatives. His district includes the cities of Scranton, Wilkes-Barre and Hazleton as well as most of...
asked Mr. Vollmer if he had obtained executive privilege from the U.S. attorney general. “No ... this is the position of the agency,” said Vollmer. "Did the SEC instruct him not to respond to questions?" Mr. Kanjorski asked. Vollmer replied that it was the position of the Commission and that “the answer is no.” The SEC announced Vollmer would "leave the Commission and return to the private sector," just 14 days after making the claim.
External links