ArtII.S3.4.7 Statutory Requirements and the Communications Privilege

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.

The Supreme Court considered the nature of executive privilege in a statutory context in its 1977 decision of Nixon v. Administrator of General Services (Nixon II).1 In that case, former President Nixon challenged the Presidential Recordings and Materials Preservation Act, a statute that nullified a contract that gave Nixon control over his own presidential records. The Act instead established a process to secure and preserve his records with a government agency.2 Along with other claims, Nixon argued that provisions of the law permitting the screening and cataloguing of presidential materials by executive branch archivists impermissibly infringed on his Privilege. Nixon II was therefore distinct from Nixon I, because it concerned disclosure within the executive branch pursuant to a statutory provision, rather than disclosure outside the executive branch pursuant to a subpoena.

The Court rejected former President Nixon’s position, holding that the statutory arrangement for preservation of the President’s records worked only a “very limited intrusion” into the President’s confidentiality interests, especially given that the law built in safeguards to prevent the public disclosure of protected materials.3 Like the previous cases, the Court engaged in a balancing test, evaluating whether the public interest justified such an intrusion, ultimately holding that it did. Congress had acted, the Court determined, based on a variety of “important objectives,” including to “preserve the materials for legitimate historical and governmental purposes” ; “restore public confidence in our political processes by preserving the materials as a source for facilitating a full airing of the events leading to appellant’s resignation” ; and based on its “need to understand how those political processes had in fact operated in order to gauge the necessity for remedial legislation.” 4

The Court’s view of the severity of the intrusion appears to have been colored by the fact that the claim was being made by a former President.5 Although recognizing that the Communications Privilege “survives the individual President’s tenure” and thus can be invoked by former Presidents to protect covered communications occurring while in office, the Court nonetheless noted that the President’s interest in confidentiality is “subject to erosion over time after an administration leaves office.” 6

Nixon II also provided the Court’s clearest explanation of the types of communications covered by the Communications Privilege. Interpreting Nixon, the Court held that the “the privilege is limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’” 7 This passage reflects the fundamental principle that the Communications Privilege does not act as a generalized safeguard for “Presidential privacy,” but instead protects the public interest in effective and deliberative presidential decisionmaking. As such, the Communications Privilege applies not to all presidential communications, but only those that bear a relationship to a presidential decision.

Nixon II marked the end of President Nixon’s lengthy and largely unsuccessful legal battles over the release of his communications. But the importance of the Nixon-era cases transcends those materials. The cases established the fundamental characteristics of the Communications Privilege: (1) there is a qualified constitutional privilege that provides presumptive protections to confidential communications made to assist presidential decisionmaking; (2) the Communications Privilege can be invoked to resist disclosure of covered communications in various contexts; and (3) the Communications Privilege is not absolute, and can be overcome when the party seeking the information can articulate a sufficient showing of need.

Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977) [hereinafter Nixon II]. back
Id. at 430–33. back
Id. 451 (noting a “consistent historical practice” in which archivists “have performed the identical task in each of the Presidential libraries without any suggestion that such activity has in any way interfered with executive confidentiality” ). back
Id. at 452–54. back
See ArtII.S3.4.9 Former Presidents and the Communications Privilege. back
Nixon II, 433 U.S. at 451. back
Id. at 449 (citations omitted). As such, it was only a “small fraction” of Nixon’s complete collection of presidential records that would be covered by the Privilege. Id. at 454. back