Executive Privilege and Government Secrecy

Executive privilege is essentially the ability of the president and his subordinates to resist subpoenas and certain interventions by Congress and the courts.

Though not specifically mentioned in the Constitution, executive privilege is derived from the separation of powers, and many argue it is essential in order for the President to get candid and meaningful advice from those who advise him. When the privilege is invoked, a presumption of privilege is established and the prosecutor must show that the evidence being withheld is “essential to the justice of the case.” (418 U.S. at 713-14). Presidents from Washington and Jefferson to Dwight Eisenhower and Richard Nixon have invoked it, but the first use of the word executive privilege actually came from the Eisenhower administration and was first recognized as such in US v. Reynolds. However, the legitimacy of the doctrine was not confirmed until US v. Nixon.

The privilege derives from the common-law principle of deliberative process immunity (or English Crown Privilege), and also from the doctrine of royal prerogative. Deliberative process immunity still applies in the US to the executive branch, but only to pre-decisional information, not after the President or one of his advisers has actually made the decision. Royal prerogative means there are certain privileges and immunities that the monarch alone possesses which are outside the reach of the law.

During the Middle Ages and Renaissance the governing philosophy of governmental power was the Divine Right of Kings which basically held that the monarch wasn’t bound by the laws of man, but only by God’s laws. But with this broad assertion of power came challenges in the form of the Charter of Liberties in 1100, the Magna Carta in 1215, and various other charters meant to limit the power of the sovereign. The first cases to really define and set about trying to limit prerogative were those having to do with habeas corpus, such as Darnel's Case, which contributed to the creation of the Petition of Right, 1628. The debate intensified as philosophers like John Locke and Sir Robert Filmer clashed over the proper limits of government power and what powers could be legitimately exercised. Locke's ideas began to prevail and such documents like the Bill of Rights of 1689 and the Act of Settlement of 1701 further curbed monarchical, arbitrary power in favor of parliamentary. Court cases like the Trial of the Seven Bishops and Campbell v. Hall further curbed the power of royal prerogative and the vast discretionary powers of English Monarchs.

Today, and for some time now, Parliament has actually been able to curb individual prerogatives through special procedures. Crown privilege (now called public interest immunity) is still used, yet is not limited to the crown. United Kingdom judges allow litigants to withhold evidence that would be damaging to the public interest. The judge must weigh the public interest in withholding or disclosing evidence in each case.

In the United States of America, executive privilege is usually invoked when disclosing evidence or documents to the public would not be in the interest of national security or the interests of the executive branch. The privilege has recently been invoked by Dick Cheney and Karl Rove, and also by members of the SEC during the Madoff investigations. Bill Clinton also invoked the privilege during the Monica Lewinsky scandals, but was denied by a federal judge, who ruled that his aides could be called to testify in court. This made him the first President since Nixon to invoke the privilege and lose.

The controversy and arguments over the validity and constitutionality of executive privilege still continues to this day. Arguably it is Madison’s “Ambition… to counteract ambition” put into practice. At the heart of the debate is the question: Is it dangerous to institutional checks and balances to give the President this kind of power?

This library topic presents the arguments and sources for you to make your own decision about the constitutionality and utility of executive privilege.