Executive Privilege and Government Secrecy

Executive privilege is essentially the ability of the president and his subordinates to resist subpoenas and certain interventions by Congress and the courts.

Though not specifically mentioned in the Constitution, executive privilege is derived from the separation of powers, and many argue it is essential in order for the President to get candid and meaningful advice from those who advise him. When the privilege is invoked, a presumption of privilege is established and the prosecutor must show that the evidence being withheld is “essential to the justice of the case.” (418 U.S. at 713-14). Presidents from Washington and Jefferson to Dwight Eisenhower and Richard Nixon have invoked it, but the first use of the word executive privilege actually came from the Eisenhower administration and was first recognized as such in US v. Reynolds. However, the legitimacy of the doctrine was not confirmed until US v. Nixon.

The privilege derives from the common-law principle of deliberative process immunity (or English Crown Privilege), and also from the doctrine of royal prerogative. Deliberative process immunity still applies in the US to the executive branch, but only to pre-decisional information, not after the President or one of his advisers has actually made the decision. Royal prerogative means there are certain privileges and immunities that the monarch alone possesses which are outside the reach of the law.

During the Middle Ages and Renaissance the governing philosophy of governmental power was the Divine Right of Kings which basically held that the monarch wasn’t bound by the laws of man, but only by God’s laws. But with this broad assertion of power came challenges in the form of the Charter of Liberties in 1100, the Magna Carta in 1215, and various other charters meant to limit the power of the sovereign. The first cases to really define and set about trying to limit prerogative were those having to do with habeas corpus, such as Darnel's Case, which contributed to the creation of the Petition of Right, 1628. The debate intensified as philosophers like John Locke and Sir Robert Filmer clashed over the proper limits of government power and what powers could be legitimately exercised. Locke's ideas began to prevail and such documents like the Bill of Rights of 1689 and the Act of Settlement of 1701 further curbed monarchical, arbitrary power in favor of parliamentary. Court cases like the Trial of the Seven Bishops and Campbell v. Hall further curbed the power of royal prerogative and the vast discretionary powers of English Monarchs.

Today, and for some time now, Parliament has actually been able to curb individual prerogatives through special procedures. Crown privilege (now called public interest immunity) is still used, yet is not limited to the crown. United Kingdom judges allow litigants to withhold evidence that would be damaging to the public interest. The judge must weigh the public interest in withholding or disclosing evidence in each case.

In the United States of America, executive privilege is usually invoked when disclosing evidence or documents to the public would not be in the interest of national security or the interests of the executive branch. The privilege has recently been invoked by Dick Cheney and Karl Rove, and also by members of the SEC during the Madoff investigations. Bill Clinton also invoked the privilege during the Monica Lewinsky scandals, but was denied by a federal judge, who ruled that his aides could be called to testify in court. This made him the first President since Nixon to invoke the privilege and lose.

The controversy and arguments over the validity and constitutionality of executive privilege still continues to this day. Arguably it is Madison’s “Ambition… to counteract ambition” put into practice. At the heart of the debate is the question: Is it dangerous to institutional checks and balances to give the President this kind of power?

This library topic presents the arguments and sources for you to make your own decision about the constitutionality and utility of executive privilege.

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Quotes on Executive Privilege.

Commentary or Blog Post

An article covering the use of executive privilege in the al Haramain Islamic Foundation case.

President Bush invoked executive privilege today for the first time in his administration to block a Congressional committee trying to review documents about a decades-long scandal involving F.B.I. misuse of mob informants in Boston.

Citing executive privilege, President George W. Bush on Wednesday rejected a subpoena for his close adviser Karl Rove to testify to the Senate Judiciary Committee in a probe over fired federal prosecutors.

"It seems that the House Judiciary Committee is considering seeking help from the Justice Department to enforce contempt citations against Bush administration officials such as Joshua Bolten who refuse to respond to congressional inquiries into alleged White House wrongdoing. That would be a mistake.

Such a strategy leaves Congress beholden to hostile executive branch officials to...

"Last Friday, Heritage's Steve Bucci wrote a piece on the defeat of the cybersecurity legislation in the Senate and called for President Obama to respect the will of the people's duly elected representatives. However, President Obama seems to have missed that blog, since over the weekend, White House press secretary Jay Carney sent an e-mail indicating that the President is indeed considering...

"Over the weekend, a draft of a cybersecurity executive order was shown to members of the press. Leaked reports of secretive decision making are what the U.S. gets when the President decides to ignore the democratic process and implement rules by executive fiat. The U.S. also gets policies that are often incomplete and poorly thought out.

Reports indicate that the executive order will...

"President Obama's decision Wednesday to assert executive privilege to shield his attorney general and the Justice Department from congressional investigators reignited a long-running Washington debate over the limits of White House power in which Obama has argued both sides."

"Post-9/11, the Bush administration has expanded the use of the state secrets privilege (SSP) to withhold evidence and dismiss cases that challenge the administration in U.S. courts. In doing so, the Bush administration is threatening judicial oversight and legal challenges of the Executive Branch's unraveling of civil rights and disregard for human rights in the name of the 'war on terror.'"

"The top Republican lawmaker investigating the botched gun-trafficking operation known as Operation 'Fast and Furious' pressed the White House late Monday to explain why it decided to invoke executive privilege over documents requested as part of the probe — a last-ditch attempt to reach an agreement with the Obama administration and fend off a contempt vote against Attorney General Eric H. Holder Jr."

"A federal judge Tuesday threw out a lawsuit filed against the U.S. government and the FBI over the agency's spying on Orange County Muslims, ruling that allowing the suit to go forward would risk divulging sensitive state secrets."

"The Republican-run House voted Thursday to hold Attorney General Eric Holder in contempt of Congress, protesting his refusal to turn over documents related to the 'Fast and Furious' gun-trafficking investigation.

GOP lawmakers cast Holder as an obstructionist in the probe of a botched operation that contributed to the death of a border patrol agent; Holder and White House officials...

Article discussing the reasons for public officials to hold their meetings in public rather than in private.

"For the first time in nearly 60 years, the Supreme Court on Tuesday will consider the limits of 'state secrets,' a legal doctrine the government often cites to quash lawsuits it says could expose information vital to national security."

"The House of Representatives voted Thursday to hold Attorney General Eric Holder in contempt for refusing to turn over documents tied to the botched Fast and Furious gun-running sting -- a discredited operation that has become a sharp point of contention between Democrats and Republicans in Washington.

The House approved a pair of criminal and civil measures against the attorney...

"The House of Representatives voted Thursday to make Eric H. Holder Jr. the first sitting attorney general held in contempt of Congress in U.S. history after he withheld documents that Republican lawmakers demanded as part of an investigation into a flawed gunrunning operation."

"The GOP-led House voted Thursday to hold Attorney General Eric Holder in contempt of Congress for failing to provide key information pertaining to Operation Fast and Furious, making Holder the first sitting Cabinet member to be held in contempt.

The vote was 255-67, with 17 Democrats breaking ranks to side with Republicans in favor of contempt.

The vote follows a roughly 16-...

An article concerning the SEC and the Bernard Madoff scandal.

"Obama and his successors in the White House would be banned from using false claims of national security to conceal 'embarrassing or unlawful conduct' by the government, under new legislation proposed by lawmakers on both sides of the House."

An article covering the abuses by government officials with their power in the name of national security.

An article covering the clause of the Constitution that states the president requires a congressional declaration to declare war.

An article discussing Karl Rove's refusal to testify before a House Judiciary Committee. His lawyer argued he was immune from the subpoena on "executive privilege."

"Yesterday, Mitt Romney assailed President Obama for a lack of transparency in invoking executive privilege to withhold documents related to the botched gun-walking Operation 'Fast and Furious' to the House Government and Oversight Committee. In the Romney campaign's released statement, headlined 'Transparent Hypocrisy: Obama's Fast and Furious Broken Promises,' Romney campaign spokeswoman Andrea Saul said: 'President Obama's pledge to be transparent has turned out to be just another broken promise.' Romney is following Republicans in Congress who already have seized upon the issue for partisan and political gain. Last month, in a vote of 255 to 67, with 108 Democrats abstaining, the House of Representatives voted to hold Attorney General Eric H. Holder, Jr. in contempt of Congress, a move that Holder described as a proxy attack against President Obama."

An article discussing the use of executive privilege by presidents and its history.

A description and brief history of executive privilege and its use among American presidents.

An examination into the Unitary Executive Theory that, according to Steven G. Calabresi and Christopher S. Yoo, appears to display itself in every president from Washington to Bush.

"In recent years, there has been renewed interest in the proper use and possible abuse of executive orders and other presidential directives. Many citizens and lawmakers expressed concern over the content and scope of several of President Bill Clinton's executive orders and land proclamations. Congress responded with hearings and the consideration of several bills designed to curb the...

Eric Alterman delves into the history of executive privilege and questions Bush's use of it.

"Congress and the White House appear headed for a showdown over President Bush's decision to invoke executive privilege to deny documents to House and Senate committees and prevent former aides from testifying about the firing of U.S. attorneys.

Lawmakers, in turn, have threatened to hold subpoenaed officials in contempt of Congress.

Here are some questions and answers about the...

Analysis Report White Paper

An article discussing the history of executive privilege and tracing its roots throughout the various presidents.

An article on the importance of executive privilege and the separation of powers.

An Amici Curiae on the State Secrets Privilege and its role in the diminishing respect of the judiciary as a separate branch in national security issues.

An article answering the question "What is Executive Privilege?"

"Executive privilege is the president's constitutional prerogative to withhold certain information requested by Congress. This prerogative is justified primarily by the president's need to receive candid advice from his advisers."

A review of Thomas Jefferson and the Executive Power by Jeremy D. Bailey.

An article detailing the author's beliefs concerning executive privilege and the State Secrets Privilege. The author asserts that other factors should be considered before a "blanket" claim to executive privilege can be made.

This article examines the origin of the State Secrets Privilege. It delves into English precedence and its development in American governmental procedure.

This article describes denial of President Bill Clinton's claim to executive privilege in the Monica Lewinsky scandal.

A transcript from a hearing given by Todd Gaziano on the procedures surrounding executive privilege.

This article examines whether an employee of an executive agency can claim executive privilege or if that power lies only with those who make actual policy decisions.

"What is the state secrets privilege? Under this privilege, the executive branch claims that the disclosure of certain evidence in court may damage national security and therefore cannot be released in litigation."

An analysis into the Supreme Court case of Cheney vs. U.S. District Court for the District of Columbia. It deals with the issues surrounding executive privilege in action.

The history and procedure of White House aides testifying in court and the requirements for such to occur.

In the ways that count, the Classified Information Procedures Act and the State Secrets Protection Act are absolutely nothing alike.

The preface and first chapter of Jeremy D. Bailey's book on Thomas Jefferson and Executive Power.

This article discusses the origins of executive privilege and its use throughout the various presidencies.

Video/Podcast/Media

Thomas E. Woods Jr, discusses the views of various presidents and their use of presidential power.

Dr. Mitch Sollenberger discusses executive privilege and its history. He explains the reasons presidents give for declaring executive privilege.

Becoming President of the United States has always guaranteed a place in history. But increasingly, becoming President guarantees something else— millions of dollars. Jim Axelrod reports.

Mark Rozell speaks on the topic of executive privilege. He states his belief that it is a constitutionally based power but it is also one subject to misuse and should be balanced with the other branches.

Primary Document

An act of parliament further limiting the power of the king and his authority over his subjects.

President Andrew Jackson's letter to the Senate stating that the executive, as a separate political body equal to the Senate, is not required to disclose private interactions with its council without sufficient reason.

An article discussing Attorney General Eric Holder's new policy on State Secrets Privilege and procedures surrounding its use.

A political writing by King James I of England entitled Basilikon Doron.

Blackstone's work is considered the most authoritative statement of the pre-American Revolution common law.

Bishop Jacques-Benigne Bossuet enforces the principle that kings are divinely established and rule by God's authority.

Campbell v Hall was a case decided in the Court of King's Bench in 1774. On its face it was an action for recovery of sums paid to a tax agent.

The Supreme Court case dealing with Vice-President Cheney's involvement with the National Energy Policy Development Group. The Supreme Court ruled 7-2 that the District court should have considered Cheney's demand for privilege.

A legislative bill passed by Congress dealing with Classified Information and national security.

"Congress's contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent...

A case involving a group of knights who were wrongfully imprisoned. They appealed for a writ of habeas corpus, which was denied but the court ruled that the king couldn't imprison people whenever he wished.

Dwight D. Eisenhower's policy on executive privilege. It says that responsibility for information disclosed shall lie with the president alone. No person shall testify or communicate information received in meetings regardless of who would benefit from it.

The English Bill of Rights passed in 1689. It laid out the rights of the citizens of England. It was a restatement of the Declaration of Right stated earlier that year.

An executive order issued by President William Howard Taft stating that an official is required to furnish all information requested of him unless, in his judgment, it is detrimental to the public interest.

This Order prescribes a uniform system for classifying, declassifying, and safeguarding national security information.

An executive order issued by President Ronald Reagan asserting the executive privilege of former and incumbent presidents dealing with the release of information by the National Archives and Records Administration.

An executive order by President William J. Clinton establishing procedure for Classified National Security Information.

An executive order by President Bill Clinton amending Executive Order 12958.

This executive order delivered by President Bill Clinton declares all classified information 25 years old shall be termed declassified and used to establish the Information Security Oversight Office.

An executive order issued by President George W. Bush establishing his new policy for the maintenance of national secrets and national security issues.

This executive order amends executive order 12958 on classified national security information.

An executive order issued by President Barack Obama revoking Executive Order 13233. It allows for information concerning previous presidents to be released, but executive privilege can be established if deemed necessary.

Kaiser Aluminum & Chemical Corporation sought damages from the United States over alleged contract breaches.

Thomas Jefferson's letter to George Hay asserting his executive privilege to disclose parts of a letter dealing with Aaron Burr's trial, but also to withhold the information not pertaining to the matter.

Thomas Jefferson writes that certain matters of the executive branch are public, and they can be disclosed without hesitation. Some matters ... are considered private and should be known only to the executive branch for the sake of national security.

Thomas Jefferson's letter to George Hay Washington discussing whether the President can be subpoenaed.

Thomas Hobbes' Leviathan revolves around the structure of society and legitimate government.

Hobbes argued that a state of nature (an environment without a government imposing order) would be "the war of all against all" and life in such an environment would be "solitary, poor, nasty, brutish, and short."

The Magna Carta was the first set of rules curtailing an English king's power. It was formulated and passed under King John's reign. Specifically, it curtailed his right to arbitrarily punish subjects. It has been revised many times over the centuries.

A Memorandum issued by Attorney General John Ashcroft on the topic of the Freedom of Information Act.

George Washington respectfully explains to the House of Representatives that, for the sake of present and future negotiations, he cannot release information regarding the present negotiations.

Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends.

David Hume's work describing and establishing the practice of passive obedience. This best became known as a religious and political doctrine advocating the absolute supremacy of the Crown and the treatment of any dissent (or more precisely, disobedience) as sinful and unlawful.

"As usurpation is the exercise of power which another hath a right to, so tyranny is the exercise of power beyond right, which nobody can have a right to; and this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private, separate advantage. When the governor, however entitled, makes not the law, but...

John Stuart Mill was a British political philosopher and politician. In this classic essay, he argues that "the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.... Over himself, over his own body and mind, the individual is sovereign."

Robert Filmer's defense of the divine right of kings to rule. His theory is founded upon the statement that the government of a family by the father is the true origin and model of all government.

Robert Filmer's defense of the divine right of kings to rule. His theory is founded upon the statement that the government of a family by the father is the true origin and model of all government.

Robert Filmer's defense of the divine right of kings to rule. His theory is founded upon the statement that the government of a family by the father is the true origin and model of all government.

An important document setting out the rights and liberties of the subject as opposed to the prerogatives of the crown (ie. Charles I).

An extensive report on the history and usage of executive privilege among presidents and other members of the executive branch.

The PRA changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents must manage their records.

This act sets out to amend chapter 22 of title 44, United States Code, popularly known as the Presidential Records Act, to establish procedures for the consideration of claims of constitutionally based privilege against disclosure of Presidential records.

To amend chapter 22 of title 44, United States Code, popularly known as the Presidential Records Act, to establish procedures for the consideration of claims of constitutionally based privilege against disclosure of Presidential records.

Calvin's Case addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered "subjects" in England.

The Bill declares that in any civil action brought in federal or state court the government has a privilege to refuse to give information and to prevent any person from giving information... if the information could cause harm to national defense.

A Supreme Court case where the Supreme Court ruled that spies cannot sue the CIA or the United States government to enforce an espionage contract.

This charter, granted by Henry when he ascended the throne, is important in two ways.

The fourth part in a series of legal treatises written by Sir Edward Coke.

A transcript of Andrew Grossman's speech before Congress on the unconstitutionality of the State Secret Protection Act.

The first treatise is meant to be a refutation of Robert Filmer's Patriarcha. The second treatise is an outline for a civil government based upon natural rights and contract theory.

The first treatise is meant to be a refutation of Robert Filmer's Patriarcha. The second treatise is an outline for a civil government based upon natural rights and contract theory.

WHERE the legislative and executive power are in distinct hands ... there the good of the society requires, that several things should be left to the discretion of him that has the executive power.

The first treatise is meant to be a refutation of Robert Filmer's Patriarcha. The second treatise is an outline for a civil government based upon natural rights and contract theory.

The Constitution of the United States established the federal governmental system currently in place with three branches of government. The premise of executive privilege developed from the separation of powers clause.

Thomas Jefferson's letter to John B. Colvin discussing adherence to the law and the necessity to occasionally overstep the law in order to protect society.

A Supreme Court case where the Supreme Court ruled on the judicial jurisdiction of espionage cases.

The trial of the seven bishops who opposed King James II and helped usher in the Glorious Revolution and William of Orange.

The trial of Aaron Burr on the charge of treasonous actions against the United States of America. He was later acquitted.

The opinion of the court in the U.S. vs. Nixon trial. The court ruled Nixon must hand over unedited copies of tape-recordings involving conversations between him and seven men indicted in the Watergate Scandal.

The opinion of the case concerning the widows of an Air Force test flight filing for damages and an accident report.

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