The New Executive Privilege

Introduction The presidency is an inherently secretive office. Presidents receive confidential information, deliberate in private, and make decisions with ramifications for national security, foreign policy, and law enforcement. The president necessarily conducts himself or herself in confidence: but the Constitution forbids that the president may declare information confidential at will.

The modern question extends from this tension. Did the Framers intend presidential secrecy to be a protection for executive decision making, or for accountability?

There is a strong argument that the principle of executive privilege derives from neither. The modern executive may rely on information secrecy to further the ends of government. But the president cannot claim or exercise privilege immunity as a convenient shield against disclosure when accountability is required.

A Power Without a Clause

For as long as there has been a federal executive department, presidents have used secrecy to protect themselves from judicial review and legislative oversight. But throughout American history, that secrecy has been ambiguous in its constitutional limits. In United States v. Nixon , the Supreme Court agreed to resolve that ambiguity.¹

President Richard Nixon sought to assert an absolute privilege against judicial process with regard to confidential presidential communications.

The Court rejected that claim outright. It did, however, acknowledge that a qualified presidential privilege exists for confidential conversations between a president and his advisers.

That principle, the Court held, does not extend to situations in which "demonstrable, overriding necessity" for the evidence exists beyond the President's interest in secrecy.¹ By this interpretation, executive privilege exists as a necessary, but not exclusive, qualification of presidential authority.

Confidentiality Has a Purpose

At a minimum, there is a basis in both common sense and the Constitution for some level of executive confidentiality. It is necessary that the President have private advisers and confidential discussions; advisors must be able to speak plainly, particularly regarding national security matters. Further, if the President must make important decisions on military matters, policy formulation, and law enforcement, he should be in a position to do so based on the information available, however classified.

Executive privilege claims that serve that end have a basis in the Constitution: however, they cannot serve as excuses to conceal executive misfeasance or malfeasance. The Constitution grants Congress investigatory powers, including the power to obtain confidential information from the executive. But executive confidentiality claims are sometimes made at precisely this juncture, wherein the President invokes the President's interest in secrecy against Congress's interest in obtaining evidence relevant to an official inquiry.

Privilege Versus Oversight

In the Court's analysis of the dispute between the President and the special prosecutor, this competition takes on another form. Congress may not compel testimony or produce documents with absolute presidential immunity; the President may not withhold information from Congress with absolute presidential authority. In each case, a balance must be struck: a balance that turns on the purpose for which information is sought and the means by which it might be obtained.

Not all presidential conversations are equal in terms of their relevance or sensitivity. It would be unreasonable to treat a policy discussion between the President and his advisers the same as a conversation regarding military intelligence and national security matters. Similarly, a request for a recommendation on a particular issue of policy is not the same as a demand for evidence of presidential wrongdoing. The principle of presidential confidentiality, in other words, is not applied categorically.

The Accountability Problem

As the modern presidency has grown more powerful and capacious in its scope than that of the Framers, the constitutional questions it raises are more urgent than ever. Particularly in the realm of national security, a contemporary President may control a huge bureaucracy, vast intelligence apparatuses, and tremendous amounts of sensitive, classified information. To the extent that a President may hide behind the secrecy of the executive branch, it may be because he is in the best position to do so.

But the principle of executive privilege, if taken to an extreme, could allow a President to establish as a matter of right the concealment of executive power and executive secrets as a matter of right.

That principle cannot be entirely correct. The fact remains that while the President has the greatest amount of information among the various branches of government, the Constitution does not license the President disclose or conceal that information at will.

Why It Matters

The President has a clear interest in being able to make decisions in private. The public has an equally clear interest in ensuring that the decisions are made honestly and lawfully. In this respect, executive privilege is a privilege not of the President, but of the people: as the framers of the Constitution well understood in establishing the separation of powers. The Constitution grants the President limited, but real, powers of secrecy, but not absolute secrecy. That is why the Court's decision in United States v. Nixon is an important one: not because the President cannot claim an interest in confidentiality, but because the Constitution is not entirely subordinate to that interest.

It seems increasingly the case that modern Presidents exercise a far greater degree of power than the Framers ever did. As such, the limits of that power are of increasing concern to those who value the rule of law.

Conclusion

The President needs private conversations to run the government. The public needs transparency enough to know that the President isn't using that power to enrich himself or act corruptly. Those principles are not irreconcilable; executive privilege can further the ends of the former without subverting the latter. What matters most in drawing that distinction is remembering the limits of presidential power.

Secrecy is a valuable tool the the President; it does not, however, extend to a blank check for obstruction of justice.

1. United States v. Nixon, 418 U.S. 683, 706-713 (1974).