ABSTRACT

This report provides a brief review and discussion of the historical and legal development of the constitutionally-based prerogative of the President to maintain the confidentiality of documents or other materials or information that reflect presidential decisionmaking and deliberations. The evolving nature and scope of the presidential privilege is described and discussed and recent court decisions are analyzed to determine how they illuminate current interbranch information disputes.

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

Summary

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, when President Washington discussed with his cabinet how to respond to a congressional inquiry into the military debacle that befell General St. Clair's expedition. 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 seven court decisions involving interbranch information access disputes, three have involved Congress and the Executive but only one of these resulted in a decision on the merits. One other case, involving legislation granting custody of President Nixon's presidential records to the Administrator of the General Services Administration, also determined several pertinent executive privilege issues.

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 recent ruling in In re Sealed Case, these judicial decisions had left important gaps in the law of presidential privilege which have increasingly become focal points, if not the source, of interbranch confrontations that has made their resolution more difficult. 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 In re Sealed Case authoritatively addressed each of these issues in a manner that may have drastically altered the future legal playing field in resolving such disputes....