Executive Privilege

What Is Executive Privilege?

Executive privilege is the right of the president of the United States to keep confidential certain communications from subpoenas and other oversight measures by the legislative and judicial branches of government. Contrary to popular belief, executive privilege is not specifically mentioned in the U.S. Constitution. Instead, it’s an implied power based on the separation of powers as outlined in the Constitution. Presidents have argued that in order to effectively govern, some degree of confidentiality must exist in order to have frank and candid discussions with their aides and staff members. Executive privilege is frequently invoked in the name of national security, but there are no set standards or issues in which executive privilege can be invoked; it’s the prerogative of the president on when to assert executive privilege.

President Eisenhower coined the phrase “executive privilege” during the Army-McCarthy hearings in 1954. But while Eisenhower may have given us the term, he was not the first president to invoke its spirit. President George Washington rebuffed requests from the House of Representatives for documents connected to the Jay Treaty negotiation, and Thomas Jefferson invoked the privilege to avoid testifying or providing private letters in the treason trial of his former vice president Aaron Burr.

Executive privilege was most famously addressed in the 1974 Supreme Court case United States v. Nixon, which compelled President Nixon to produce his Oval Office audiotapes of conversations regarding the Watergate investigation. Nixon had refused to turn over the tapes to Watergate special prosecutor Archibald Cox, arguing that the President is absolutely immune from judicial process. In its unanimous decision, the Supreme Court noted the validity of executive privilege while also holding that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Nixon subsequently turned over the tapes and sixteen days later resigned from the presidency.

To help understand this mighty but sometimes fuzzy power, this database provides primary and secondary source material such as government documents from the executive, legislative, and judicial branches, as well as law review articles and books that invoke, debate, and explore instances of executive privilege from the country’s founding to the present day.

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