October 6, 2021

Defining the Limits of Executive Privilege


  • A major legal fight is brewing over the potential use of executive privilege to prevent disclosure of information to the House select committee investigating the January 6 riot.
  • Executive privilege is a collection of different rights, united by the general principle that the president and key advisers must be able to have internal discussions without fear of exposure.
  • Courts have not determined precisely how much power former presidents have to assert executive privilege or testimonial immunity, so the current situation could set significant precedents.

On September 24, White House press secretary Jen Psaki said that President Biden “has already concluded that it would not be appropriate to assert executive privilege” to avoid disclosing evidence in the executive branch’s possession relating to the events of January 6. The same day, an “administration official” clarified for Reuters that questions of executive privilege would be evaluated “on a case-by-case basis,” which was effectively the opposite of what Psaki had said. These statements followed the White House’s earlier decision to authorize some former officials to sit for transcribed interviews with congressional investigative committees.

It is not difficult to surmise why the Biden administration would issue vague, contradictory statements on executive privilege. Few presidents want to create precedents that could ultimately result in more disclosure of embarrassing documents. Nearly a half-century after the most influential Supreme Court case involving executive privilege, who can assert the privilege and under what circumstances remains hotly contested.

Thomas Jefferson on Separation of Powers

Murky Origins

Executive privilege generally allows the president and his close advisers to refuse to produce documents or testimony to the judicial or legislative branches under some circumstances. The exact parameters of the privilege are still very much in doubt because the overwhelming majority of executive privilege claims have been resolved by negotiation rather than court order. This is not surprising, given that most privilege claims are intensely political, and courts have created a doctrine to avoid ruling on intensely political questions.

The Constitution says nothing about executive privilege, but the concept became evident very shortly after the founding. Discourse on the subject has been heated and political from the start. In 1792, President Washington and the very first Cabinet decided on a policy of producing documents in response to congressional document requests only if the executive considered it in accordance with “the public good.” Washington continued to follow that policy, and he also did not produce documents when he deemed the request not in accordance with the Constitution.

Subsequent presidents continued using that standard, including President Jefferson when he refused to produce documents and testimony for Aaron Burr’s impeachment trial. The first significant judicial shaping of executive privilege came in 1974 when President Nixon attempted to assert executive privilege to prevent the release of secret tapes, transcripts, and meeting memoranda. The Supreme Court ruled 8-0 that Nixon had to produce the evidence because executive privilege, while constitutionally valid, could not be absolute or unqualified. The Supreme Court’s standard in 1974 was not much clearer than George Washington’s in 1792: “the legitimate needs of the judicial process may outweigh Presidential privilege.”

Five Components, Plus Testimonial Immunity

Because there have not been many court rulings, much of the legal community’s understanding of executive privilege comes from opinions by the Department of Justice Office of Legal Counsel, which are not binding on Congress or the courts. Between the case law and OLC opinions, there are five categories of executive privilege:

  • Presidential communications: The Supreme Court’s 1974 decision in United States v. Nixon discussed the need to keep communications between the president and senior advisers private. The court said that presidents may not speak with candor when discussing important matters if they thought their statements would eventually be made public.

  • Deliberative process: This aspect is also based on the idea that “frank discussion” requires keeping communications private. It is broader than presidential communications, extending to pre-decision executive branch documents not involving the president. It extends to documents that recount facts or discuss decisions that have already been made.

  • Attorney-client communications: The executive branch and Congress have gone back and forth on whether the attorney-client privilege is constitutionally based or simply the common-law privilege. If it is merely common law, Congress could theoretically overrule it.

  • National security: The executive branch has claimed “absolute” protection for materials that would jeopardize national security.

  • Law enforcement: OLC has claimed that information relating to an ongoing criminal investigation is protected by executive privilege.

Testimonial immunity, the topic of interest in the recently settled case of Committee on the Judiciary v. McGahn, is based on the idea that Congress cannot compel the president’s advisers to testify about their official duties because of separation of powers. In OLC’s words from 2019, “Congress may no more summon the President to a congressional committee room than the President may command Members of Congress to appear at the White House.”

In the McGahn case, the D.C. Circuit ultimately skirted the issue of whether executive testimonial immunity is absolute. The case was settled without a definitive ruling on whether Congress had authorized the House to file suit to enforce congressional subpoenas.

Questions at Issue in the January 6 Case

The House select committee investigating the January 6 riot has issued a number of subpoenas to former Trump administration officials. President Trump has indicated that he will likely invoke executive privilege or testimonial immunity to excuse the testimony of those officials. This case raises a number of important questions, among them:

  • Can former presidents invoke executive privilege? In a 1977 case, the Supreme Court held that a law forcing Richard Nixon to turn over his presidential papers was not unconstitutional. The controlling opinion held that former presidents could assert executive privilege. However, it also held that the law was not a violation of separation of powers, in part because neither President Ford nor President Carter thought so. This distinction could mean that a former president can invoke executive privilege, but might not be able to invoke testimonial immunity. OLC has concluded that the privilege extends to a former counsel based on separation of powers principles and from the precedent of former President Truman’s “refusal to comply with a subpoena directing him to appear before the House Committee on Un-American Activities.”

  • Can a current president effectively override a former president’s assertion of executive privilege? For much of U.S. history, the standard for determining whether executive privilege was appropriate was a simple evaluation of the nation’s best interests, made by the president. If a current president does not think executive privilege is appropriate, would his opinion preclude or weigh against the invocation of executive privilege by his predecessor? The Supreme Court weighed the views of successor presidents in the 1977 case, but the 1974 case based privilege on the need for frank discussions. Allowing subsequent disclosure would presumably negate some of the value of having the privilege while president.

  • Is testimonial immunity absolute? The McGahn case did not quite resolve whether testimonial immunity is absolute, and the same question could arise in this context. If testimonial immunity is not absolute, how would the challenging facts of this case – very senior White House officials subpoenaed relating to a matter of high national importance that spurred an impeachment – play out in court?

If a court case evolves out of this controversy and proceeds to completion without settlement or either party dropping the suit, it could reshape executive privilege for centuries to come.

Issue Tag: Judiciary