Article II, Section 3:

He shall from time to time give to the Congress Information of 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 shall Commission all the Officers of the United States.

Presidents have claimed a right to withhold their communications from Congress since the start of the Republic.1 Congress’s resistance to such claims, however, is equally grounded in history.2 The resulting, recurring, and often prominent disagreements over what has come to be known broadly as “executive privilege” tend to place in opposition two implied and often competing constitutional principles: Congress’s right to obtain information necessary to carry out its legislative functions and the President’s interest in protecting the confidentiality of his (and sometimes his subordinates') communications.3

Unlike more traditional legal disagreements between parties, resolution of these interbranch executive privilege disputes has not historically come from the courts. Instead, when conflict has been avoided, it has typically been because of a process of compromise and accommodation in which absolute claims—for either access or confidentiality—are relinquished and replaced by a negotiated resolution acceptable to both Congress and the Executive.4

The traditional preference for political rather than judicial solutions is supported by the fact that neither Congress nor the President appears to have sought judicial resolution of an interbranch executive privilege dispute until the 1970s.5 Courts have also been wary of judicially declared outcomes and have generally sought to avoid adjudicating executive privilege disputes, instead encouraging the political branches to settle their differences while noting that judicial intervention should, as a prudential matter, “be avoided whenever possible” or at least “delayed until all possibilities for settlement have been exhausted.” 6

As a result, the judiciary has historically played a limited role in determining how executive privilege may be used to restrict congressional access to information.7 The Supreme Court has never directly considered applying executive privilege in the context of a congressional investigation.8 Lower federal court decisions are similarly scarce.9 The only appellate-level decision to reach the merits of an executive privilege dispute between Congress and a sitting President occurred nearly fifty years ago during President Richard Nixon’s administration.10 In that case, the Senate Select Committee on Presidential Campaign Activities elected to seek a declaratory judgment in the courts with respect to the President’s obligations to obey its subpoenas.11

Although not involving executive privilege, the Court in its 2020 decision, Trump v. Mazars, nevertheless recognized several important separation of powers-based limitations on Congress’s ability to access presidential records.12 Writing on behalf of the Court, Chief Justice John Roberts began by acknowledging three central limits on all congressional inquiries, regardless of the target of the inquiry: (1) there must be a valid legislative purpose related to a subject of legislation, (2) the purpose of the inquiry must not be for law enforcement or to expose for the sake of exposure, and (3) certain constitutional and common law privileges can limit disclosures of information.13 The Court, however, viewed these limitations, standing alone, as inadequately checking Congress’s powers in a dispute with the Executive Branch.14 After all, according to Mazars, any paper possessed by a President could relate to a conceivable subject of legislation, possibly allowing Congress significant authority to interfere with the Executive Branch.15

Recognizing that the typical limits on the subpoena power did not prevent Congress from attempting to “aggrandize itself at the President’s expense,” the Chief Justice feared that judicial resolution of such a dispute using only those limits could deter negotiation between the two branches, historically the hallmark of such inquiries, and encourage Congress to seek compliance through the courts.16 As a result, the Chief Justice instructed lower courts to perform a “careful analysis” using “[s]everal special considerations” that take “adequate account” of the separation of powers principles at stake during a legislative inquiry into the President’s records.17 Specifically, in such a dispute, courts should, among other considerations, (1) carefully assess whether the confrontation can be avoided by relying on other sources to provide Congress the information it needs in light of its legislative objective; (2) “insist” on a subpoena that is no broader than is reasonably necessary to support Congress’s objective; (3) consider the nature of the evidence of Congress’s legislative purpose, preferring more detailed and substantial evidence to vague or loosely worded evidence of Congress’s purpose; and (4) assess the burdens, such as time and attention, the subpoena imposes on the President.18

Footnotes

1

See In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997) ( “Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government.” ).

2

Disputes between Congress and the President over executive privilege can be traced back to the 1790s. See Mark J. Rozell, Executive Privilege: Presidential Power, Secrecy, and Accountability 31–32 (2002) (describing the House’s resistance to President Washington’s refusal to disclose information relating to the Jay Treaty).

3

United States v. Nixon, 418 U.S. 683, 711 (1974) ( “Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.” ); Watkins v. United States, 354 U.S. 178, 187 (1957) ( “The power of the Congress to conduct investigations is inherent in the legislative process.” ). For a thorough discussion of the judicial treatment of executive privilege see Todd Garvey, Cong. Rsch. Serv., R47102, Executive Privilege and Presidential Communications: Judicial Principles (2022).

4

See In re Sealed Case, 121 F.3d at 729 ( “[G]iven the restrictions on congressional standing and the courts’ reluctance to interfere in political battles, few executive-congressional disputes over access to information have ended up in the courts.” ); see also Breaking the Logjam: Principles and Practice of Congressional Oversight and Executive Privilege, Hearing before the S. Comm. on the Judiciary, Subcomm. on Fed. Cts., Oversight, Agency Action and Fed. Rts., 117th Cong. (2021) (2021).

5

See S. Select Comm. On Presidential Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); see also James Hamilton, The Power to Probe: A Study of Congressional Investigations 197 (1976) (noting that the Senate Select Committee’s lawsuit to enforce the subpoena issued to President Nixon was “the first civil action to enforce a congressional subpoena issued to the executive” ).

6

See Cheney v. U.S. Dist. Ct., 541 U.S. 913, 389 (2004) ( “These ‘occasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible” ); see also Todd Garvey, Cong. Rsch. Serv., LSB10432, Resolving Subpoena Disputes Between the Branches: Potential Impacts of Restricting the Judicial Role (2020).

7

In addition to other justiciability issues, the Speech or Debate Clause, which generally prevents direct pre-enforcement challenges to congressional subpoenas, also plays a role in limiting litigation connected to Congress’s investigatory powers. See Todd Garvey, Cong. Rsch. Serv., R45043, Understanding the Speech or Debate Clause (2017).

8

See Trump v. Mazars USA, LLP, No. 19-760, slip op. at 2 (U.S. July 9, 2020) ( “We have never addressed a congressional subpoena for the President’s information.” ).

9

There has been a recent increase in information access disputes between the branches making their way to the courts. See, e.g., Civil Enforcement of Congressional Authorities: Hearing before Subcomm. on Cts., Intell. Prop., and the Internet of the Comm. on the Judiciary, 117th Cong. (2021), (Statement of Todd Garvey). These cases have not, however, directly involved the merits of an interbranch executive privilege disputes.

10

See S. Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). The D.C. Circuit reached the merits of a dispute between a House committee and a former President in 2021. Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021), cert. denied, 142 S. Ct. 1350 (2022).

11

S, Select, 498 F.2d at 726. The House Judiciary Committee’s 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. President Nixon’s position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 Wkly. Comp. Pres. Docs. 592 (1974). The impeachment article and supporting material are set out in H. Rep. No. 93–1305, 93d Cong., 2d Sess. (1974).

12

See Trump v. Mazars USA, LLP, No. 19-760, slip op. at 2 (U.S. July 9, 2020).

13

Trump v. Mazars USA, LLP, No. 19-760, slip op. at 2 (U.S. July 9, 2020).

14

Id. at 3.

15

Id.

16

Id. While the papers at stake in Mazars were the President’s personal records, the Court concluded that the close connection between the Office of the President and its occupant did not diminish the separation of powers concerns at issue, and may have even posed a “heightened risk” given the records’ “less evident connection to a legislative task.” Id. at 2. The Mazars Court likewise rejected the argument that separation of powers concerns were diminished because the records at issue were in the hands of a third party, as opposed to the President himself. Id. For the Court, the central issue was that the President’s information was at stake, and ruling otherwise would have encouraged side-stepping constitutional requirements. Id.

17

Id.

18

Id. at 5. The Court observed that “[o]ther considerations may be pertinent as well.” Id. at 6. While adopting this four-factor test, the Court rejected the need for a more “demanding” standard that would have required Congress to demonstrate a specific need for particular records that were “critical” to a legislative purpose. Id. at 2 (concluding that imposing a standard akin to the one governing executive privilege claims would “risk seriously impeding Congress in carrying out” inquiries to obtain information it needs to legislate effectively).