Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments

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 achieving resolution through political negotiation and accommodation. In fact, it was not until the Watergate-related lawsuits in the 1970's seeking access to President Nixon's tapes that the existence of a presidential confidentiality privilege was judicially established as a necessary derivative of the President's status in our constitutional scheme of separated powers. Of the eight court decisions involving interbranch or private information access disputes, three have involved Congress and the Executive but only one of these resulted in a decision 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 decisionmaking and deliberations that he believes should remain confidential. If the President does so, 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 to balance 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. However, until the District of Columbia Circuit's 1997 ruling in In re Sealed Case(Espy), and 2004 decision in Judicial Watch v. Department of Justice, these judicial decisions had left important gaps in the law of presidential privilege. Among the more significant issues left open included whether the President has to have actually seen or been familiar with the disputed matter; whether the presidential privilege encompasses documents and information developed by, or in the possession of, officers and employees in the departments and agencies of the Executive Branch; whether the privilege encompasses all communications with respect to which the President may be interested or is it confined to presidential decisionmaking and, if so, is it limited to any particular type of presidential decisionmaking; and precisely what kind of demonstration of need must be shown to justify release of materials that qualify for the privilege. The unanimous panel in Espy, and the subsequent reaffirmation of the principles articulated in Espy by Judicial Watch, authoritatively addressed each of these issues in a manner that may have drastically altered the future legal playing field in resolving such disputes. Source: Congressional Research Service

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