Executive Privilege: Definition & Examples

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  • 0:00 What Is Executive Privilege?
  • 1:04 Executive Privilege…
  • 2:56 Examples of Executive…
  • 5:24 Lesson Summary
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Lesson Transcript
Instructor: Andrea Stephenson

Andrea has a Juris Doctor and has spoken at legal conferences on government transparency.

This lesson will discuss executive privilege. You will learn what executive privilege is, where its authority comes from, and better understand executive privilege through examples of its use from history and today.

What Is Executive Privilege?

How would you feel if every one of your private conversations could potentially be released to the public? Would you feel that you could speak freely about any issue? I think we can agree that not every one of our conversations should be free to disclose. Well, the same thought process applies to the President of the United States and the executive branch. Certain issues that the president and his advisers discuss should not be open to the pubic, such as certain issues of national security. But, how does the executive branch keep certain conversations, documents, etc. confidential? Well, that is where executive privilege comes in.

Executive privilege is the principle invoked in certain circumstances by the president of the United States and some other executive branch members. It allows specific information to be withheld not only from the public, but also Congress and the court system. In general, the privilege provides the executive branch the ability to resist subpoenas and some interventions or investigations by the legislative and judicial branches.

Executive Privilege Controversy

Executive privilege was not adopted in the Constitution of the United States. Instead, the privilege is considered to be an implied power of the president. An implied power is one which is not spelled out in the Constitution, but instead has been inferred from the language of the Constitution to exist for a number of reasons, including:

  1. for the general welfare of the United States
  2. in order to enforce the laws
  3. so that a certain branch of government may carry out its purpose and tasks

Since executive privilege is not spelled out in the Constitution, the principle is very controversial, and, in fact, some legal scholars argue that the executive privilege does not exist. However, most agree that the president and the executive branch need secrecy at times, so that candid conversations may take place on certain issues without those involved worrying whether the conversation will be available to the public.

The main controversial aspect of the executive privilege is the ability to invoke it in order to withhold information from Congress or judicial proceedings. However, the Supreme Court of the United States acknowledged the existence of executive privilege in the case U.S. v. Nixon. In that case, the Supreme Court held that the privilege existed due to the separation of powers doctrine and the executive branches' supremacy, but it was not a complete defense to inquiry. The court explained that due to the separation of powers, the executive branch needed some ability to resist the other branches imposing on all facets of its activity, especially on certain topics. Therefore, the Supreme Court said that executive privilege was limited to a list of topics, including military, diplomatic, and national security affairs. Additionally, the court stated that in order to sustain the privilege, the executive branch must cite more than just a need for confidentiality.

Examples of Executive Privilege

As you may guess, the president invoking executive privilege can get a fair amount of attention, especially on high profile issues. Some more memorable instances in the 20th century where executive privilege was invoked were:

  1. by President Nixon in the Watergate scandal
  2. by President Clinton in the Monica Lewinsky scandal
  3. more recently by President Obama for the Fast and Furious documents

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