Executive privilege
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Executive privilege is the power held by the President of the United States and other members of the executive branch that allows them to resist certain search warrants and other encroachments. As presidents since George Washington and Thomas Jefferson have argued, the separation of powers embodied in the United States Constitution implies that each branch will be permitted to operate within limits free to some degree from the control or supervision of the other. The Supreme Court re-affirmed this in the case United States v. Nixon.
The concept of executive privilege is a legally murky one, and the Constitution does not mention it, though some consider it to be an element of the separation of powers doctrine. The history of Executive privilege underscores the untested nature of the doctrine, since Presidents have generally sidestepped open confrontations with Congress and the courts over this issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.
Jefferson set the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president, would be the judge of that. Jefferson complied with Marshall's order, but claimed he was doing so voluntarily. President Bill Clinton did the same when agreeing to testify before the grand jury called by Independent Counsel Kenneth Starr only after negotiating the terms under which he would appear.
The Supreme Court addressed executive privilege in United States v. Nixon, the 1974 case involving the demand by Watergate special prosecutor Leon Jaworski that Richard Nixon produce the audiotapes of conversations 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.
The Supreme Court did not reject that claim out of hand; it noted, in fact, "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties" and that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." This is very similar to the logic that the Court had used in establishing an "executive immunity" defense for high office-holders charged with violating citizens' constitutional rights in the course of performing their duties.
The Supreme Court however DID reject the notion that the President has an "absolute privilege." The Supreme Court stated: "To read the Art.II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a genaralized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and graveley impair the role of the courts under Art. III" 418 U.S. 683, 707.
The Court did not, on the other hand, accept Nixon's privilege argument on the facts of that case. 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.
