The congressional lawmaking power, as well as authority to conduct investigations and oversight hearings, the courts have long held, often will require access to information possessed by the executive branch. When this need arises, Congress will request information on matters of public concern, including production of reports, papers and memorandum, as well as personal testimony from cabinet members and other officials. On occasion, Presidents will refuse disclosure of the requested information, for various reasons, including national security, foreign affairs and diplomatic matters, in addition to the need for trust and confidentiality between the executive and subordinates, a relationship that will be undermined, it is contended, if the President is unable to preserve the secrecy of confidential discussions. What happens when the President refuses to disclose information to Congress or the courts? By what rationale might the President decide to withhold the information sought by the legislative and judicial branches? The answer lies in the invocation of executive privilege, the origins, development and use of which are the subjects of considerable debate, in Washington and across the nation. In this discussion, we focus on the nature and constitutional parameters of the claim of executive privilege, with a look at the way it has been utilized by Presidents. We are not concerned, at this juncture, to discuss the subject of evidentiary privilege, such as priest-penitent, doctor-patient, lawyer-client relationships, which do not rise to the level of constitutional principles.
The assertion of executive privilege invites a clash between the executive and legislative branches. While it is true, historically, that these conflicts, for the most part, have been resolved through the political process, often with principles of political courtesy, bargaining, accommodation and relationships in mind, but since the confrontations surrounding the Watergate crisis, greater focus has been placed on the constitutional claims of each branch. The Supreme Court has held that when the assertions of both the congressional investigative power and the executive power to withhold information are appropriately exercised to discharge the proper functions of their departments, they are to be regarded as “implied powers.” In 1927, the Court held in McGrain v. Daugherty, that Congress “cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.” Investigations, manifestly, are integral to wise lawmaking. In 1974, in the landmark case of United States v. Nixon, the Court concluded that the President’s need to withhold information to maintain confidentiality, is implied in the Constitution: “To the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.”
Important constitutional questions surround the assertion of executive privilege—the authority to withhold information and testimony from Congress and the courts. In United States v. Nixon, Chief Justice Warren Burger, writing for an 8-0 Court (Justice Rehnquist recused himself on grounds of conflict tracing to his work at the Department of Justice on behalf of the Nixon Administration), rejected President Nixon’s claim of an “absolute” executive privilege, but held for the first time in American history that the President enjoyed a “limited” privilege. For the Court, Chief Justice Burger declared that Nixon must comply with a federal district court subpoena to turn over the Watergate Tapes to a federal prosecutor engaged in a Watergate-related criminal case. Burger stated: “Absent a claim of need to protect military, diplomatic or sensitive national security secrets,” no presidential claim of executive privilege could prevail over “the fundamental demands of due process of law in the fair administration of criminal justice.” Burger went on to explain that executive privilege was rooted in the separation of powers doctrine. His opinion did not resolve many issues involving executive privilege, including the scope of the privilege, but it provides an important platform for our thorough examination of this presidential power.
The starting point in constitutional analysis begins, as we have previously observed, with the text of the Constitution. Where in the Constitution—in its express provisions or implied derivations—is provision made for executive privilege? Moreover, which of the President’s constitutional assignments require resort to claims of executive privilege?
The Framers of the Constitution made no provision for executive privilege, which is not surprising, given their deep-seated fear of executive power. The debates in the Philadelphia Convention evinced no sympathy for executive privilege. James Wilson of Pennsylvania, second in importance to James Madison as an architect of the Constitution, defended the Convention’s decision to establish a single, rather than a plural Presidency. “Executive power,” he explained, “is better to be trusted when it has no screen.” Wilson noted the visibility and accountability of the President: “He cannot act improperly, and hide either his negligence or inattention,” and although he possesses sufficient power, “not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.” The President was bound by the strictures of the Constitution, made amenable t the laws and the judicial process, and barred from hiding his activities. The Framers’ understanding, as Madison put it, that the executive power should be “confined and defined” affords no ground for the view that executive privilege was regarded as an attribute of executive power that might be advanced to conceal the President’s “negligence or inattention.”
The delegates’ refusal to grant the President the authority to conceal information from Congress reflected more than just a generalized distrust of executive power. The decision also reflected the Framers’ belief that Congress, like the British Parliament, would need on occasion to pursue investigations as a prelude to impeachment. Wilson was one of the many delegates to trumpet the role of the House of Commons as the “Grand Inquest of the Nation” which, he declared, has “checked the progress of arbitrary power. . . . The proudest ministers of the proudest monarchs . . . have appeared at the bar of the house to give an account of their conduct.” In addition, the Framers acted out of the belief that the powers vested in Congress—including its general oversight authority to supervise the enforcement of its laws and the implementation of its appropriations, as well as its broad informing function—required legislative access to information possessed by the executive.
The lone provision of the Constitution that addresses secrecy vests in Congress, not the President, the authority to conceal information from the public. Article 1, Section 5, requires both houses of Congress to keep and publish journals, except “such parts as may in their judgment require secrecy.” This provision proved divisive in the Constitutional Convention and in the state ratifying conventions. Wilson was one of those who objected. “The people,” he insisted, “have a right to know what their Agents are doing or have done, and it should not lie in the option of the Legislature to conceal their proceedings.” The Framers preferred publicity rather than secrecy, and they understood that information and knowledge were critical to the preservation of liberty and the enterprise of self-governance.
In summary, neither the Constitutional Convention debates—in which the idea of executive privilege was never discussed—nor the text of the Constitution supports the notion that the Founders intended to bestow upon the President the power to conceal information from Congress. Nor at the time of the framing was there either an inherent or implied executive power to conceal information from legislative inquiry. The Framers knew how to grant power, confer immunities, and create exceptions to power, but there is no evidence to support the contention that they ascribed to the President an implied power to undercut the investigatory power of Congress.