Executive Privilege

• Author: Philip B. Kurland
• Pages: 952-954

Page 952

Executive privilege refers to a right of the chief executive to refuse to produce documents within his control in response to a demand from either the legislative or judicial departments of the national government. There would seem to be no question that the chief magistrate need not respond to such demands from departments of state governments. Raoul Berger has asserted that "executive privilege is a myth," a creature of the Presidents who have asserted this claim to immunity without foundation in the Constitution. Although the Constitution does provide for legislative privilege, there are no words in the Constitution on which to base any such executive privilege. Nevertheless, the Supreme Court, in UNITED STATES V. NIXON (1974), wrote executive privilege into the Constitution on the grounds that it inheres in the notion of SEPARATION OF POWERS that is immanent in our basic document:

The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to these values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.

The privilege as created by the Court in Nixon is not, however, an absolute one. Interests of the other branches of government may override the presidential interest in

Page 953

the privilege. And in Nixon the executive privilege was held subordinate to the claim of a GRAND JURY for EVIDENCE "that is demonstrably relevant in a criminal trial." Thus, the weight of the privilege to withhold information differs according to its function. It is at its lowest force when it "is based only on the generalized interest in confidentiality." It is at its strongest when the claim is based on the ground of "military or diplomatic secrets."

The Supreme Court's constitutional DOCTRINE of executive privilege is still in its nascency. The Court, in Nixon, particularly eschewed passing on "the balance between the...