Inherent power of the president to withhold information from Congress and the courts or to refuse to testify in a legislative or judicial proceeding.
Presidential discretion to refuse to appear before a legislative or judicial proceeding is sometimes considered a separate category of executive discretion called executive privilege, or presidential privacy. According to William Safire, the phrase “executive privilege” was first used in the 1950’s, but the concept dates back to the practice of the royal prerogative, privilege of clergy, and privileges of Parliament.
Executive privilege is also considered an implied power under Article II of the U.S. Constitution. George Washington
Because of its opaque historical roots, disagreement exists regarding the meaning and scope of executive privilege, its application in U.S. government, and its constitutional basis. As a result of these disagreements, in the post-World War II period, federal courts frequently were asked to decide cases involving executive privilege. Constitutional scholars such as Raoul Berger represent one side of the debate that argues that executive privilege is a myth, not a constitutional reality. Proponents of a broad interpretation of executive privilege tend to be presidents and executive officials who argue for it in a particular political context rather than on principle. The debate over its application has been colored by the specific controversies that engendered its use. For example, President Dwight D. Eisenhower used executive privilege to prevent Defense Department officials from revealing information sought by the House of Representatives during the Army-Joe McCarthy hearings in 1953-1954.
Only a president
The Supreme Court set limits to executive privilege in the landmark precedent United States v. Nixon
Although post-World War II presidents have tended to argue for an absolute privilege, the federal courts have rejected the idea based largely on the legitimate needs of the other branches of government to acquire information from the executive. The Court has accepted a constitutionally based limited privilege. The closest the Court came to accepting an absolute privilege power was in Spalding v. Vilas
In the 1990’s, the federal courts ruled that President Bill Clinton’s
In a related matter, the Clinton administration argued that Secret Service agents are covered by “protective-function privilege” because requiring them to testify about the president before a federal grand jury or to be deposed by the independent council’s office is incompatible with their duty to protect the president. Acceptance of this claim would have significantly expanded the extent of executive privilege. However, the Court also refused to hear this case, letting stand the lower court’s decision to deny the president’s claim of a protective-function privilege.
Antieau, Chester James. Our Two Centuries of Law and Life, 1775-1975: The Work of the Supreme Court and the Impact of Both Congress and Presidents. Littleton, Colo.: Fred B. Rothman, 2001. Berger, Raoul. Executive Privilege: A Constitutional Myth. Cambridge, Mass.: Harvard University Press, 1974. Fisher, Louis. Constitutional Conflicts Between Congress and the President. 4th ed. Lawrence: University Press of Kansas, 1997. Rozell, Mark J. Executive Privilege: The Dilemma of Secrecy and Democratic Accountability. Baltimore, Md.: Johns Hopkins University Press, 1994. Safire, William. Safire’s New Political Dictionary. New York: Random House, 1993. Yates, Jeff. Popular Justice: Presidential Prestige and Executive Success in the Supreme Court. Albany, N.Y.: State University of New York Press, 2002.
Burger, Warren E.
Butz v. Economou
Nixon, Richard M.
Nixon, United States v.
Nixon v. Administrator of General Services
White, Byron R.