Executive Privilege

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Executive privilege is the power of the President and other officials in the executive branch to withhold certain forms of confidential communication from the courts and the legislative branch. When executive privilege is invoked in litigation, the court should weigh its applicability by balancing competing interests.  The Constitution is silent on the executive power to withhold information from the courts or Congress; the privilege is rooted in the separation of powers doctrine that divides the power of the United States government into legislative, executive and judicial branches. 

United States v. Nixon, also known as the Watergate Scandal, has established that even a President has a legal duty to provide evidence of one’s communications with his aides when the information is relevant to a criminal case. By requiring the President to turn over recordings of private conversations that he had with his aides, the Court’s decision has helped frame how to define executive privilege in judicial setting. Even before the Nixon decision, however, some courts have required the executive branch to provide governmental records and documents prepared for the President.

In civil actions, federal decisions have recognized the executive privilege over the officials’ internal communications and advice based on the law of evidence. However, the courts have held that the applicability of the privilege should be decided on a case by case basis by weighing the need for the administration of justice against the need to protect confidentiality. Courts have generally held that statements of facts are exempt from the privilege while subjective opinions, recommendations and advice are protected.

[Last updated in June of 2020 by the Wex Definitions Team]