Introduction
In 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. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of the executive branch in its own area of Constitutional activity.
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, 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. " 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.
Historical Development
During the period of 1947-49, several major security cases became known to Congress. There followed a series of investigations, culminating in the famous Hiss-Chambers case of 1948. At that point, the Truman Administration issued a sweeping secrecy order blocking congressional efforts from the FBI and other executive data on security problems. During the Army–McCarthy hearings in 1954, Eisenhower 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.
U.S. v. Nixon
The Supreme Court addressed "executive privilege" in United States v. Nixon, the 1974 case involving the demand by Watergate special prosecutor Archibald Cox 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. 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.
Post-Nixon
The Clinton administration invoked executive privilege on fourteen occasions. In 1998, President Bill Clinton 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 scandal.
Correspondingly, the Bush administration invoked executive privilege on six occasions. President George W. Bush first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno, the scandal involving the Federal Bureau of Investigation (FBI) misuse of organized-crime informants James J. Bulger and Stephen Flemmi in Boston, and Justice Department deliberations about President Bill Clinton's fundraising tactics, in December 2001. 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.
On June 20, 2012, President Barack Obama asserted executive privilege, his first, to withhold certain Department of Justice documents related to the ongoing Operation Fast and Furious controversy ahead of a United States House Committee on Oversight and Government Reform vote to hold Attorney General Eric Holder in Contempt of Congress for refusing to produce the documents. Later the same day, the United States House Committee on Oversight and Government Reform voted 23-17 along party lines to hold Attorney General Holder in contempt of Congress over not releasing documents regarding Fast and Furious.
Richard Nixon, 37th President of the United States
Richard Milhous Nixon, 37th President of the United States.