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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

The Presidential Aegis: Demands for Papers

Presidents have more than once had occasion to stand in a protective relation to their subordinates, assuming their defense in litigation brought against them546 or pressing litigation in their behalf,547 refusing a call for papers from one of the Houses of Congress which might be used, in their absence from the seat of government, to their disadvantage,548 challenging the constitutional validity of legislation which he deemed detrimental to their interests.549 One of the principal efforts throughout our history has been his efforts to spread his own official immunity to them, by resisting actions of the courts or of congressional committees to require divulgence of confidential communications from or to the President, that is, communications that Presidents choose to regard as confidential. Only recently, however, has the focus of the controversy shifted from protection of presidential or executive interests to protection of the President himself and the locus of the dispute shifted to the courts.

Following years in which claims of executive privilege were resolved one way or another on the basis of the political strengths of the parties, in primarily interbranch disputes, the issue was finally the subject of the first judicial elaboration of the doctrine to take place in our history; the doctrine of executive privilege was at once recognized as existing and having a constitutional foundation while[p.533]at the same time it was definitely bounded in its assertion by the principle of judicial review. Because of these cases, because of the intensified congressional–presidential dispute, and especially because of the introduction of the issue into an impeachment proceeding, a somewhat lengthy treatment of the doctrine is called for.

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President, either in effectuation of its investigatory powers to oversee the conduct of officials of the Executive Branch or in effectuation of its power to impeach the President, Vice President, or civil officers of the Government. Private parties may seek information in the possession of the President either in civil litigation with the Government or in a criminal proceeding brought by government prosecutors. Generally, the categories of executive privilege have been the same whether it is Congress or a private individual seeking the information, but it is possible that the congressional assertion of need may over–balance the presidential claim to a greater degree than that of a private individual. The judicial precedents are so meager yet that it is not possible so to state, however.

The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the government. The Constitution does not expressly confer upon the Executive Branch any such privilege, but it has been claimed that the privilege derives from the constitutional provision of separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution. Historically, assertion of the doctrine has been largely confined to the areas of foreign relations, military affairs, pending investigations, and intragovernmental discussions.550 The current and ongoing litiga[p.534]tion involved, of course, the claim of confidentiality of conversations between the President and his aides.

Private Access to Government Information.—Private parties may seek to obtain information from the Government either to assist in defense to criminal charges brought by the Government or in civil cases to use in either a plaintiff’s or defendant’s capacity in suits with the Government or between private parties.551 In criminal cases, a defendant is guaranteed compulsory process to obtain witnesses by the Sixth Amendment and by the due process clause is guaranteed access to relevant exculpatory information in the possession of the prosecution.552 Generally speaking, when the prosecution is confronted with a judicial order to turn over information to a defendant that it does not wish to make available, the prosecution has the option of dropping the prosecution and thus avoiding disclosure,553 but that alternative may not always be available; in the Watergate prosecution, only by revoking the authority of the Special Prosecutor and bringing the cases back into the confines of the Department of Justice could this possibility have been realized.554


The civil type of case is illustrated in United States v. Reynolds,555 a tort claim brought against the United States for compensation for the deaths of civilians in the crash of an Air Force plane testing secret electronics equipment. Plaintiffs sought discovery of the Air Force’s investigation report on the accident, and the Government resisted on a claim of privilege as to the nondisclosure of military secrets. The Court accepted the Government’s claim, holding that courts must determine whether under the circumstances the claim of privilege was appropriate without going so far as to force disclosure of the thing the privilege is designed to protect. The showing of necessity of the private litigant for the information should govern in each case how far the trial court should probe; where the necessity is strong, the court should require a strong showing of the appropriateness of the privilege claim but once satisfied of the appropriateness no matter how compelling the need the privilege prevails.556


546 E.g., 6 Atty. Gen.220 (1853); In re Neagle, 135 U.S. 1 (1890).
547 United States v. Lovett, 328 U.S. 303 (1946).
548 E.g., 2 J. Richardson, op. cit., n.42, 847.
549 United States v. Lovett, 328 U.S. 303, 313 (1946).
550 For a good statement of the basis of the doctrine, the areas in which it is asserted, and historical examples, see Executive Privilege: The Withholding of Information by the Executive, Hearings before the Senate Judiciary Subcommittee on Separation of Powers, 92d Congress, 1st sess. (1971), 420–443, (then–Assistant Attorney General Rehnquist). Former Attorney General Rogers, in stating the position of the Eisenhower Administration, identified five categories of executive privilege: (1) military and diplomatic secrets and foreign affairs, (2) information made confidential by statute, (3) information relating to pending litigation, and investigative files and reports, (4) information relating to internal government affairs privileged from disclosure in the public interest, and (5) records incidental to the making of policy, including interdepartmental memoranda, advisory opinions, recommendations of subordinates, and informal working papers. The Power of the President To Withhold Information from the Congress, Memorandum of the Attorney General, Senate Judiciary Subcommittee on Constitutional Rights, 85th Congress, 2d sess. (Comm. Print) (1958), reprinted as Rogers, Constitutional Law: The Papers of the Executive Branch, 44B.A.J.941 (1958). In the most expansive version of the doctrine, Attorney General Kleindeinst argued that the President could assert the privilege as to any employee of the Federal Government to keep secret any information at all. Executive Privilege, Secrecy in Government, Freedom of Information, Hearings before the Senate Government Operations Subcommittee on Intergovernmental Relations, 93d Congress, 1st sess. (1973), I:18 passim. For a strong argument that the doctrine lacks any constitutional or other legal basis, see R. Berger, Executive Privilege: A Constitutional Myth (Cambridge: 1974). The book, however, precedes the Court decision in Nixon.
551 There are also, of course, instances of claimed access for other purposes, for which the Freedom of Information Act, 80 Stat. 383 (1966), 5 U.S.C. Sec. 552 , provides generally for public access to governmental documents. In 522(b), however, nine types of information are exempted from coverage, several of which relate to the types as to which executive privilege has been asserted, such as matter classified pursuant to executive order, interagency or intra–agency memoranda or letters, and law enforcement investigatory files. See, e.g., EPA v. Mink, 410 U.S. 73 (1973); FTC v. Grolier, Inc., 462 U.S. 19 (1983); CIA v. Sims, 471 U.S. 159 (1985); John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989); Vaughn v. Rosen, 484 F. 2d 820 (D.C.Cir. 1973), cert. den., 415 U.S. 977 (1974).
552 See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of Criminal Procedure. The earliest judicial dispute involving what later became known as executive privilege arose in United States v. Burr, 25 F. Cas. 30 and 187 (C.C.D. Va. 1807), in which defendant sought certain exculpatory material from President Jefferson. Dispute continues with regard to the extent of presidential compliance, but it appears that the President was in substantial compliance with outstanding orders if not in full compliance.
553 E.g., Alderman v. United States, 394 U.S. 165 (1968).
554 Thus, defendant in United States v. Ehrlichman, 376 F. Supp. 29 (D.C.D.C. 1974), was held entitled to access to material in the custody of the President wherein the President’s decision to dismiss the prosecution would probably have been unavailing.
555 345 U.S. 1 (1953).
556 Id., 7–8, 9–10, 11. Withholding of information relating to governmental employees’ clearances, disciplines, or discharges often raise claims of such privilege. E.g., Webster v. Doe, 486 U.S. 592 (1988); U. S.Dept. of the Navy v. Egan, 484 U.S. 518 (1988). After the Court approved and implemented a governmental secrecy agreement with some of its employees, Snepp v. United States, 444 U.S. 507 (1980), the Government expanded its secrecy program with respect to classified and “classifiable” information. When Congress sought to curb this policy, the Reagan Administration convinced a federal district judge to declare the restrictions void as invasive of the President constitutional power to manage the executive. National Federation of Federal Employees v. United States, 688 F.Supp. 671 (D.D.C.), vacated and remanded sub nom., American Foreign Service Assn. v. Garfinkel, 490 U.S. 153 (1989). For similar assertions in the context of plaintiffs suing the Government for interference with their civil and political rights during the protests against the Vietnam War, in which the plaintiffs were generally denied the information in the possession of the Government under the state– secrets privilege, see Halkin v. Helms, 598 F.2d 1 (D.C.Cir. 1978); Id., 690 F.2d 977 (D.C.Cir. 1982); Ellsberg v. Mitchell, 709 F.2d 51 (D.C.Cir. 1983). For review and analysis, see Quint, The Separation of Powers Under Carter, 62 Tex. L. Rev. 785, 875–880 (1984). And see Totten v. United States, 92 U.S. 105 (1875).
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