CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

Prosecutorial and Grand Jury Access to Presidential Documents.— Rarely will there be situations when federal prosecutors or grand juries seek information under the control of the President, since he has ultimate direction of federal prosecuting agencies, but the Watergate Special Prosecutor, being in a unique legal situation, was held able to take the President to court to enforce subpoenas for tape recordings of presidential conversations and other documents relating to the commission of criminal actions.557 While holding that the subpoenas were valid and should be obeyed, the Supreme Court recognized the constitutional status of execu[p.536]tive privilege, insofar as the assertion of that privilege relates to presidential conversations and indirectly to other areas as well.

Presidential communications, the Court said, have “a presumptive privilege.” “The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.” The operation of government is furthered by the protection accorded communications between high government officials and those who advise and assist them in the performance of their duties. “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” The separation–of–powers basis derives from the conferral upon each of the branches of the Federal Government of powers to be exercised by each of them in great measure independent of the other branches. The confidentiality of presidential conversations flows then from the effectuation of enumerated powers.558

However, the Court continued, the privilege is not absolute. The federal courts have the power to construe and delineate claims arising under express and implied powers. Deference is owed the constitutional decisions of the other branches, but it is the function of the courts to exercise the judicial power, “to say what the law is.” The Judicial Branch has the obligation to do justice in criminal prosecutions, which involves the employment of an adversary system of criminal justice in which all the probative facts, save those clearly privileged, are to be made available. Thus, while the President’s claim of privilege is entitled to deference, the courts must when the claim depends solely on a broad, undifferentiated claim of confidentiality balance two sets of interests.

“In this case we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of his responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However we cannot conclude that advisers will be moved[p.537]to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.

“On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President’s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. . . .

“We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”559

Obviously, this decision leaves much unresolved. It does recognize the constitutional status of executive privilege as a doctrine. It does affirm the power of the courts to resolve disputes over claims of the privilege. But it leaves unsettled just how much power the courts have to review claims of privilege to protect what are claimed to be military, diplomatic, or sensitive national security secrets. It does not indicate what the status of the claim of confidentiality of conversations is when it is raised in civil cases; nor does it touch upon denial of information to Congress.

Neither does the Court’s decision in Nixon v. Administrator of General Services560 elucidate any of these or other questions that may be raised to any great degree. In upholding the Presidential Recordings and Materials Preservation Act, which directed the Government to take custody of former President Nixon’s records to be screened, catalogued, and processed by professional archivists, in GSA, the Court viewed the assertion of privilege as directed only to the facial validity of the requirement of screening by executive branch professionals and not at all to be related to the possible public disclosure of some of the records. The decision does go be[p.538]yond the first decision’s recognition of the overbalancing force of the necessity for disclosure in criminal trials to find “comparable” “adequate justifications” for congressional enactment of the law, including the preservation of the materials for legitimate historical and governmental purposes, the rationalization of preservation and access to public needs as well as each President’s wishes, the preservation of the materials as a source for facilitating a full airing of the events leading to the former President’s resignation for public and congressional understanding, and preservation for the light shed upon issues in civil or criminal litigation. While interestingly instructive, the decision may be so attuned to the narrow factual circumstances that led to the Act’s passage as to leave the case of little value as precedent.

Congressional Access to Executive Branch Information.— Presidents and Congresses have engaged in protracted disputes over provision of information from the former to the latter, but the basic thing to know is that most congressional requests for information are complied with. The disputes, however, have been colorful and varied.561 The basic premise of the concept of executive privilege, as it is applied to resist requests for information from Congress as from private parties with or without the assistance of the courts, is found in the doctrine of separation of powers, the prerogative of each coequal branch to operate within its own sphere independent of control or direction of the other branches. In this context, the President then asserts that phase of the claim of privilege relevant to the moment, such as confidentiality of communications, protection of diplomatic and military secrets, preservation of investigative records. Counterpoised against this assertion of presidential privilege is the power of Congress to obtain information upon which to legislate, to oversee the carrying out of its legislation, to check and root out corruption and wrongdoing in the Executive Branch, involving both the legislating and appropriating function of Congress, and in the final analysis to impeach the President, the Vice President, and all civil officers of the Federal Government.

Until quite recently, all disputes between the President and Congress with regard to requests for information were settled in the political arena, with the result that few if any lasting precedents were created and only disputed claims were left to future argument. The Senate Select Committee on Presidential Campaign Activities, however, elected to seek a declaratory judgment in the[p.539]courts with respect to the President’s obligations to obey its subpoenas. The Committee lost its case, but the courts based their rulings upon prudential considerations rather than upon questions of basic power, inasmuch as by the time the case was considered impeachment proceedings were pending in the House of Representatives.562 The House Judiciary Committee subpoenas were similarly rejected by the President, but instead of going to the courts for enforcement the Committee adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas.563 Congress has considered bills by which Congress would authorize congressional committees to go to court to enforce their subpoenas; the bills did not purport to define executive privilege, although some indicate a standard by which the federal court is to determine whether the material sought is lawfully being withheld from Congress.564 The controversy gives little indication at the present time of abating, and it may be assumed that whenever the Executive and Congress are controlled by different political parties there will be persistent conflicts. One may similarly assume that the alteration of this situation would only reduce but not remove the disagreements.


Section 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and * * *[p.540]


This clause, which imposes a duty rather than confers a power, is the formal basis of the President’s legislative leadership, which has attained great proportions since 1900. This development, however, represents the play of political and social forces rather than any pronounced change in constitutional interpretation. Especially is it the result of the rise of parties and the accompanying recognition of the President as party leader, of the appearance of the National Nominating Convention and the Party Platform, and of the introduction of the Spoils System, an ever present help to Presidents in times of troubled relations with Congress.565 It is true that certain pre–Civil War Presidents, mostly of Whig extraction, professed to entertain nice scruples on the score of “usurping” legislative powers,566 but still earlier ones, Washington, Jefferson, and Jackson among them, took a very different line, albeit less boldly and persistently than their later imitators.567 Today, there is no subject on which the President may not appropriately communicate to Congress, in as precise terms as he chooses, his conception of its duty. Conversely, the President is not obliged by this clause to impart information which, in his judgment, should in the public interest be withheld.568 The President has frequently summoned both Houses into “extra” or “special sessions” for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.


The Right of Reception: Scope of the Power

“Ambassadors and other public ministers” embraces not only “all possible diplomatic agents which any foreign power may accredit to the United States,”569 but also, as a practical construction of the Constitution, all foreign consular agents, who therefore may not exercise their functions in the United States without an exequatur from the President.570 The power to “receive” ambassadors, et cetera, includes, moreover, the right to refuse to receive them, to[p.541]request their recall, to dismiss them, and to determine their eligibility under our laws.571 Furthermore, this power makes the President the sole mouthpiece of the nation in its dealing with other nations.


557 United States v. Nixon, 418 U.S. 683, 692–697 (1974).
558 Id., 707–708. Presumably, the opinion recognizes a similar power existent in the federal courts to preserve the confidentiality of judicial deliberations, cf. New York Times Co. v. United States, 403 U.S. 713, 752 n. 3 (1971) (Chief Justice Burger dissenting), and in each House of Congress to treat many of its papers and documents as privileged. Cf. Soucie v. David, 448 F. 2d 1067, 1080, 1081–1982 (C.A.D.C. 1971) (Judge Wilkey concurring); Military Cold War Escalation and Speech Review Policies, Hearings before the Senate Committee on Armed Services, 87th Congress, 2d sess. (1962), 512 (Senator Stennis). See Calley v. Callaway, 519 F. 2d 184 (5th Cir., 1975) (en banc), cert. den., 425 U.S. 911 (1976); United States v. Ehrlichman, 389 F. Supp. 95 (D.D.C., 1974).
559 418 U.S. 683, 711–713. Essentially the same decision had been arrived at in the context of subpoenas of tapes and documentary evidence for use before a grand jury in Nixon v. Sirica, 487 F. 2d 700 (D.C.Cir. 1973).
560 433 U.S. 425, 446–455 (1977). See id., 504, 545 (Chief Justice Burger and Justice Rehnquist dissenting). The decision does resolve one outstanding question; assertion of the privilege is not limited to incumbent Presidents. Id., 447–449. Subsequently, a court held that former–President Nixon had had such a property expectancy in his papers that he was entitled to compensation for their seizure under the Act. Nixon v. United States, 978 F.2d 1269 (D.C.Cir. 1992).
561 See the extensive discussion in Shane, Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress, 71 L. Rev.461 (1987).
562 Senate Select Committee on Presidential Campaign Activities v. Nixon, 370 F. Supp. 521 (D.D.C.), affd., 498 F. 2d 725 (D.C.Cir. 1974).
563 President Nixon’s position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 Comp. Pres. Docs.592 (1974). The impeachment article and supporting material are set out in H. Rept. No. 93–1305, 93d Cong., 2d sess. (1974).
564 For consideration of various proposals by which Congress might proceed, see Hamilton & Grabow, A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas, 21 Harv. J. Legis. 145 (1984); Brand & Connelly, Constitutional Confrontations: Preserving a Prompt and Orderly Means by Which Congress May Enforce Investigative Demands Against Executive Branch Officials, 36 U. L. Rev.71 (1986); Note, The Conflict Between Executive Privilege and Congressional Oversight: The Gorsuch Controversy, 1983 Duke L. J. 1333.
565 N. Small, Some Presidential Interpretations of the Presidency (Baltimore: 1932); W. Binkley, The President and Congress (New York: 2d ed. 1962); E. Corwin, op. cit., n.44, chs. 1, 7.
566 The first Harrison, Polk, Taylor, and Fillmore all fathered sentiments to this general effect. See 4 J. Richardson, op. cit., n.42, 1860, 1864; 6 id., 2513–2519, 2561–2562, 2608, 2615.
567 See sources cited supra, n.565.
568 Warren, Presidential Declarations of Independence, 10U.L. Rev.1 (1930); 3 W. Willoughby, op. cit., n.294, 1488–1492.
569 7 Atty. Gen.186,209 (1855).
570 5 J. Moore, International Law Digest (Washington: 1906), 15–19.
571 Id., 4:473–548; 5:19–32.
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