ArtII.S3.4.4 The Presidential Communications Privilege Generally

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.

Deriving implicitly from the President’s powers under Article II and the separation of powers doctrine, the presidential communications privilege (communications privilege) protects the confidentiality of the President’s decision making process.1 The communications privilege is grounded on the proposition that to make judgments and reach decisions the President and his advisers must be free to discuss issues candidly, express opinions, and explore options without fear that those deliberations will later be made public.2

The Communications Privilege is qualified, rather than absolute, and applies only to confidential communications made in support of official presidential decisionmaking that directly involve the President or close presidential advisers.3 For the vast majority of U.S. history, however, the existence and appropriate scope of the Communications Privilege was uncertain and nearly untouched by the courts.4 While Chief Justice John Marshall referred to the confidentiality of presidential communications in Marbury v. Madison and during the treason trial of former Vice President Aaron Burr,5 in “neither instance [] was Marshall forced to definitively decide whether such a presidential privilege existed and if so, in what form.” 6 In fact, the Judiciary’s involvement in addressing the Communications Privilege’s use in resisting disclosure in the face of either judicial or legislative subpoenas did not begin in earnest until the 1970s and the Administration of President Richard Nixon.7 Prior to the Nixon era, the Communications Privilege’s contours were instead left to be defined, if at all, by historical practice and the actions and interpretations of Congress and the President.

The years during and immediately following the Nixon Administration are arguably the defining era of the Communications Privilege’s judicial development. It was during that time period (1972-1977) that the courts first confirmed the Communications Privilege’s existence and began to delineate-but did not significantly develop-its application in criminal and civil proceedings, as well as its use in response to exercises of Congress’s oversight and legislative powers.8 In each of these contexts, courts were asked to resolve significant but unsettled questions of constitutional law, ranging from whether the President is immune from all compulsory process to the scope and force of presidential claims of the Communications Privilege.9

See Nixon, 418 U.S. at 705–06. back
Id. at 708. In this sense, executive privilege is partly based on the theory that transparency can inhibit decisionmaking. back
See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977). back
See, e.g., Raoul Berger, Executive Privilege: A Constitutional Myth 1 (1974) (describing executive privilege as a “myth” and a “product of the nineteenth century, fashioned by a succession of presidents who created ‘precedents’ to suit the occasion.” ). back
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 169–70 (1803) (suggesting that “[t]he intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation” ); United States v. Burr, 25 F. Cas. 30, 37 (noting that if a letter to President Jefferson “does contain any matter which it would be imprudent to disclose, which it is not the wish of the executive to disclose, such matter, if it be not immediately and essentially applicable to the point, will, of course, be suppressed” ). The Supreme Court addressed the state secrets privilege in United States v. Reynolds, 345 U.S. 1, 7–8 (1953) (articulating a “privilege which protects military and state secrets” that “belongs to the Government and must be asserted by it” but “is not to be lightly invoked.” ). back
In re Sealed Case, 121 F.3d at 738. back
Id. at 739–40 ( “[I]t was not until the 1970s and Watergate-related lawsuits seeking access to President Nixon’s tapes as well as other materials that the existence of the presidential privilege was definitively established as a necessary derivation from the President’s constitutional status in a separation of powers regime.” ); see also id. at 742 ( “These lawsuits, referred to generically as the Nixon cases, remain a quarter century later the leading-if not the only- decisions on the scope of the presidential communications privilege.” ). back
See, e.g., Nixon, 418 U.S. 683, 707 (1974) (assessing the Privilege in the context of a criminal trial); Sirica, 487 F.2d at 717 (assessing the Privilege in the context of a grand jury investigation); Senate Select, 498 F.2d at 731 (assessing the Privilege in the context of a congressional investigation); Dellums v Powell, 561 F.2d 242, 249 (D.C. Cir. 1977) (assessing the Privilege in the context of civil case). back
President Nixon also asserted the Privilege in the impeachment context in response to subpoenas issued by the House Judiciary Committee. The House did not, however, enlist the aid of the courts in order to enforce its demands for information in that context, and instead chose to respond to the President’s refusals by adopting a specific article of impeachment rebuking the President for his failure to comply with the committee’s subpoenas. See H. Rep. No. 93-1305, 93rd Cong., at 206–13 (1974). back