Executive Privilege

Executive privilege is the right of the president of the United States to keep certain information confidential 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 is an implied power based on the separation of powers that the Constitution outlines. 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 is no set standard or issues in which executive privilege can be invoked; it’s the prerogative of the president regarding when to utilize this power. 

The issue of executive privilege was most famously addressed in the 1974 Supreme Court case United States v. Nixon, which compelled President Richard Nixon to produce his Oval Office audiotapes of conversations regarding the Watergate investigation. The President argued that his station was absolutely immune from the judicial process. The Supreme Court disagreed. 

Since then, Presidents Bill Clinton, George W. Bush, Barack Obama, and Donald Trump have all asserted executive privilege and been meet with opposition from the legislative and judicial branches. Most recently, President Trump has claimed executive privilege with respect to both documents and testimony. Some of these claims are still making their way through the courts and, like every executive privilege case, have the potential to upend the delicate balance of power between the three branches of our government.