Article II, Section 3 — Duties

ArtII.S3.1 The President’s Legislative Role

The first two clauses of Article II, Section 3 relate to the President’s legislative role. The first clause, directing the President to report to the Congress on the state of the union, imposes a duty rather than confers a power and serves as the formal basis of the President’s legislative leadership. The President’s legislative role has grown substantially since 1900. This development, however, reflects changes in political and social forces rather than any pronounced change in constitutional interpretation. The rise of parties and the accompanying recognition of the President as party leader, the appearance of the National Nominating Convention and the Party Platform, and the introduction of the Spoils System all contributed to the growth of the President’s legislative role.¹ While certain pre-Civil War Presidents, mostly of Whig extraction, professed hesitation regarding “usurping” legislative powers,² still earlier Presidents—including George Washington, Thomas Jefferson, and Andrew Jackson—took a very different line, albeit less boldly and persistently than their later successors.³ Today, there is no subject on which the President may not appropriately communicate to Congress, in as precise terms as he chooses, his conception of its duty. Conversely, the President is not obliged by this Clause to impart information which, in his judgment, should in the public interest be withheld.⁴

The second clause of Article II, Section 3 authorizes the President to convene or adjourn the Houses of Congress in certain circumstances. The President has frequently summoned both Houses into “extra” or “special sessions” for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.

ArtII.S3.2.1 Early Doctrine on Receiving Ambassadors and Public Ministers

The third clause of Article II, Section 2 directs the President to “receive Ambassadors and other public ministers.” An early opinion from Attorney General Caleb Cushing interpreted “Ambassadors and other public ministers” to encompass “all possible diplomatic agents which any foreign power may accredit to the United States.”¹ According to John Bassett Moore in his famous International Law Digest, the term, as a practical construction of the Constitution, also encompasses all foreign consular agents who may not exercise their functions in the United States without an exequatur from the President.² The power to “receive” ambassadors and other foreign diplomatic and consular agents includes the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws.³

During the United States’ formative years, the Founders expressed differing views regarding the scope of the President’s reception power. Writing in 1790, Thomas Jefferson stated that “[t]he transaction of business with foreign nations is executive altogether.”⁴ The function “belongs . . . to the head of that department, except as to such portions of it as are specially submitted to the Senate.”⁵ Thus, when Edmond-Charles Genet, envoy to the United States from the first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, then-Secretary of State Jefferson informed Genet that as the President was the only channel of communication between the United States and foreign nations, it was from him alone “that foreign nations or their agents are to learn what is or has been the will of the nation.” ⁶ Secretary Jefferson accordingly returned the consul’s commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed.

Consistent with Jefferson’s view, Congress later in 1798 passed An Act to Prevent Usurpation of Executive Functions, or the Logan Act, which prohibits U.S. citizens from engaging in unauthorized negotiations with foreign governments having a dispute with the United States.⁷ Congress enacted the law in response to the actions of a Philadelphia Quaker named George Logan, who went to Paris on his own to negotiate with the French Government in an effort to avert war between France and the United States.⁸ The next year, John Marshall, then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great Britain under the twenty-seventh article of the Jay Treaty rather than leaving the matter to the courts. In Marshall’s view, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” Thus, according to Marshall, “the demand of a foreign nation can only be made on [the President],” and “any act to be performed by the force of the nation is to be performed through him.”⁹ Ninety-nine years later, a Senate Foreign Relations Committee took occasion to reiterate Marshall’s doctrine with elaboration.¹⁰

In contrast, James Madison expressed a more limited view of the President’s reception power. In his attack upon President George Washington’s Proclamation of Neutrality in 1793 at the outbreak of war between France and Great Britain, Madison argued that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power to declare war. In support of this proposition, Madison disparaged the presidential function of reception, asserting that “little, if anything, more was intended by the [reception] clause, than to provide for a particular mode of communication, almost grown into a right among modern nations.”¹¹ The Clause, in his view, did nothing more than “point[ ] out the department of the government” that is “most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations.”¹² Accordingly, Madison concluded that “it would be highly improper to magnify the function into an important prerogative.”¹³ The right to receive ambassadors, in his view, did not grant the Executive the right to, for instance, recognize a new foreign government—a right that “belongs to the nation.”¹⁴

In defending Washington’s proclamation, Alexander Hamilton advocated for a broader view of the President’s reception power. Writing under the pseudonym Pacificus, Hamilton opined that

The right of the executive to receive ambassadors and other public ministers, may

serve to illustrate the relative duties of the executive and legislative departments. This

right includes that of judging, in the case of a revolution of government in a foreign

country, whether the new rulers are competent organs of the national will, and ought to

be recognized, or not; which, where a treaty antecedently exists between the United

States and such nation, involves the power of continuing or suspending its operation

. . . . This power of determining virtually upon the operation of national treaties, as a

consequence of the power to receive public ministers, is an important instance of the

right of the executive, to decide upon the obligations of the country with regard to

foreign nations.¹⁵

In Hamilton’s view, this right of the Executive, in certain cases, “to determine the condition of the nation” can sometimes “affect the exercise of the power of the legislature to declare war.”¹⁶ Nevertheless, Hamilton acknowledged that the Executive cannot control Congress’s exercise of that power. In his view, however, “the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision,” such that the two braches share concurrent authorities in particular circumstances.¹⁷

Jefferson likewise did not officially support Madison’s point of view. Writing about his July 10, 1793 conversation with Genet, Jefferson noted that he informed Genet that Congress was not the United States’ sovereign. Instead, Congress was “sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department.”¹⁸ Thus, Jefferson explained to Genet, it is the President’s—and not Congress’s—responsibility “to see that treaties are observed,” and that “the Constitution had made the President the last appeal” for his decisions related to treaties.¹⁹

History has largely affirmed Hamilton’s view of the President’s reception power. After reviewing the circumstances surrounding the United States’ recognition of new states, governments, and belligerency before 1906, John Basset Moore observed that “[i]n every case, . . . the question of recognition was determined solely by the Executive.”²⁰ The President’s power to receive thus encompasses the power to recognize new states, communities claiming the status of belligerency, and changes of government in established states. By the same token, the power also encompasses the power to decline recognition, and thereby decline diplomatic relations with such new states or governments.²¹

ArtII.S3.2.2 Specific Cases on Receiving Ambassadors and Public Ministers

The question concerning whether Congress shares with the President the right to recognize new states was prominently raised in connection with Cuba’s successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the subject. The Committee concluded in a memorandum that “[t]he executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties,” and that “[i]n the department of international law, . . . a Congressional recognition of belligerency or independence would be a nullity.”¹

The Committee reasoned that the recognition of independence or belligerency of a foreign power “is distinctly a diplomatic matter” evidenced “either by sending a public minister to the government thus recognized, or by receiving a public minister therefrom.”² The reception of a foreign envoy, the Committee stated, “is the act of the President alone.”³ The next step of sending a public minister to the nation thus recognized, is likewise “primarily the act of the President.”⁴ The Committee noted that the Senate can take no part in the selection at all until the President has sent in a nomination, and upon such nomination, act “in its executive capacity, and, customarily, in ‘executive session.’”⁵ Because “[f]oreign nations communicate only through their respective executive departments,” their legislative departments’ resolutions upon diplomatic matters “have no status in international law.” Thus, while Congress can help the Cuban insurgents by legislation in many ways, “it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Constitution is correct.”⁶

Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898, against Spain. For the most part, the sponsors of the clause defended it by arguing that at that point, diplomacy had come to an end, after the President himself had appealed to Congress to provide a solution for the Cuban situation. In response, Congress was about to exercise its constitutional power of declaring war, and as part of the exercise of that power, it has the right to state the purpose of the war which it was about to declare.⁷

After Cuba, numerous presidents had occasions to exercise their power to recognize—or in some cases, not recognize—new foreign states or governments. The recognition of the Union of Soviet Socialist Republics in 1933, for instance, was an exclusively presidential act. President Woodrow Wilson, early in 1913, refused to recognize Provisional President José Victoriano Huerta as the de facto government of Mexico, thereby contributing materially to Huerta’s downfall the year following. President Wilson also announced a general policy of nonrecognition of any government founded on acts of violence. While he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. President Herbert Hoover’s Administration similarly refused in 1932 to recognize the independence of the Japanese puppet state of Manchukuo. The People’s Republic of China (PRC) likewise remained unrecognized from President Harry Truman’s Administration until President Richard Nixon’s de facto recognition through a 1972 visit, not long after the People’s Republic of China was admitted to the United Nations and Taiwan excluded. President Jimmy Carter’s official recognition of the PRC became effective on January 1, 1979.⁸ The earlier nonrecognition of the PRC proved to be an important part of American foreign policy during the Cold War.⁹

ArtII.S3.2.3 Modern Doctrine on Receiving Ambassadors and Public Ministers

The Supreme Court considered whether the President has the exclusive power to grant formal recognition to a foreign sovereign in Zivotofsky v. Kerry.¹ At issue in that case was a provision of the Foreign Relations Authorization Act that allowed United States citizens born in Jerusalem to list their place of birth as “Israel” in their passports.² This provision sought to override legislatively a State Department policy that instructed agency employees to list the place of birth for citizens born in Jerusalem as “Jerusalem” in passports because the United States did not recognize any country as having sovereignty over Jerusalem.³

After examining the historical practice related to recognition and other functional considerations, the Supreme Court held that the President retains exclusive authority over the recognition of foreign sovereigns and their territorial bounds.⁴ Although Congress, pursuant to its enumerated powers in the field of foreign affairs, may properly legislate on matters which precede and follow a presidential act of recognition—including in ways which may undercut the policies that inform the President’s recognition decision—it may not alter the President’s recognition decision.⁵

ArtII.S3.3.1 Overview of Take Care Clause

The Constitution provides that the President “shall take Care that the Laws be faithfully executed . . . .” This duty potentially implicates at least five categories of executive power, including: (1) powers the Constitution confers directly upon the President by the opening and succeeding clauses of Article II; (2) powers that congressional acts directly confer upon the President; (3) powers that congressional acts confer upon heads of departments and other executive agencies of the federal government; (4) power that stems implicitly from the duty to enforce the criminal statutes of the United States; and (5) power to carry out the so-called “ministerial duties,” regarding which an executive officer can exercise limited discretion as to the occasion or manner of their discharge. The following essays explore some of the questions raised by these executive powers, including how the President may exercise the powers which the Constitution or the statutes confer upon him, the relationship between the Take Care Clause and the President’s power to remove—and thus supervise—those who wield executive power on his behalf, and the extent to which Congress can direct the actions of executive officials.

ArtII.S3.3.2 Who Can Fulfill the Take Care Duty

Whereas the British monarch is constitutionally required to always act through agents if his acts are to receive legal recognition, the President is presumed to exercise certain of his constitutional powers personally. In an 1855 opinion, Attorney General Caleb Cushing identified several such examples, including the President’s granting of reprieves and pardons for offenses against the United States and his role as “the supreme commander in chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.”¹ According to Cushing, the President’s power as Commander in Chief is “constitutionally inherent in the person of the President” such that “[n]o act of Congress, no act even of the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President.”²

Moreover, according to Cushing, the President’s obligation to act personally may be sometimes enlarged by statute. The act organizing the President with other designated officials into “an Establishment by name of the Smithsonian Institute,” in Cushing’s view, is one such example. Cushing also believed that expenditures from the “secret service” fund, in order to be valid, must be vouched for by the President personally.³ On like grounds the Supreme Court once held void a court martial decree because it was not specifically approved by the President as required by the 65th Article of War.⁴ The Court, however, has effectively overruled this case, and at any rate such cases are exceptional.⁵

Over time, the general rule that developed is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, become the President’s acts.⁶ In Williams v. United States,⁷ for instance, the Supreme Court considered a statute that prohibited the advance of public money in any case whatsoever to disbursing officers of the United States, except under special direction by the President.⁸ The Supreme Court held that the act did not require the personal performance by the President of this duty.⁹ Such a practice, said the Court, would “absorb the duties of the various departments of the government in the personal acts of one chief executive officer” and be not just impracticable but “impossible.”¹⁰ While “[t]he President’s duty in general requires his superintendence of the administration,” the Court reasoned that “he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services” which he is technically required by the Constitution and applicable laws to perform.¹¹ As a matter of administrative practice, in fact, most orders and instructions are attributed to the heads of the departments, even though such orders and instructions are based on powers conferred by statute on the President.¹²

ArtII.S3.3.3 Relationship Between Take Care Clause and President’s Removal Power

As the Supreme Court has observed, the Constitution vests all executive power in the President, who must “take Care that laws be faithfully executed.”¹ Because no single person could fulfill that responsibility alone, the Court notes, “the Framers expected that the President would rely on subordinate officers for assistance.”² As a result, the Court reasoned that “[t]he President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II.”³

Some early views of the President’s removal power grounds this authority in large part in the Take Care Clause. In a 1789 debate in the First Congress concerning whether the Constitution authorizes the President to remove Executive Branch officers unilaterally, for instance, Representative James Madison expressed the view that the heads of certain executive departments should be removable by the President alone. According to him, it was “the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible” for the executive department, and this responsibility carried with it the power to “inspect and control” the conduct of subordinate Executive Officers.⁴ Vesting removal power in the Senate jointly with the President would, in Madison’s view, “abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good.”⁵

Over time, however, as the Supreme Court refined its jurisprudence on the President’s removal power, it came to characterize the basis of this power as stemming more generally from separation of power principles embedded in the Constitution’s scheme, as evidenced by provisions including the Vesting Clause, Take Care Clause, and the Appointment Clause.⁶

ArtII.S3.3.4 Removal Power as the President’s Primary Means of Supervision

If the President’s duty to “take care” that laws are faithfully executed in part provides the basis for his authority to remove the principal officers who wield executive power on his behalf, a related question is whether such duty also entitles the President to substitute his own judgment for that of such principal officers regarding the discharge of such duty.¹ Put another way, does the Take Care Clause allows Congress to vest, in a head of an executive department, certain discretion which the President is not entitled to control, such that the President’s only means of supervision is through the exercise of his removal authority?

An 1823 opinion rendered by Attorney General William Wirt asserted the proposition that the President’s duty under the Take Care Clause generally required him to do no more than exercise his removal authority when those subordinate officers failed to discharge their duty to execute the laws faithfully, including by removing them or by setting in motion against them the processes of impeachment or of criminal prosecutions.²

In its 1838 decision Kendall v. United States ex rel. Stokes,³ the Supreme Court agreed that the President’s Take Care duty does not foreclose the possibility that Congress may entrust the construction of its statutes to an executive officer other than the President. In that case, the United States owed several mail carriers, who had performed services under contract, money. When Postmaster General Amos Kendall, at President Andrew Jackson’s instigation, refused to pay it, Congress passed a special act ordering payment.⁴ When Kendall continued to refuse to pay, the mail carriers sued and obtained a mandamus in the United States circuit court for the District of Columbia. The lower court concluded that the duty of the President under the Take Care Clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law and see that the executive action conforms to it.⁵

The Supreme Court affirmed, rejecting the argument every officer in the Executive Branch is under the exclusive direction of the President.⁶ The Court noted that while there are “certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President,” it would be “an alarming doctrine” to hold “that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution.”⁷ In such cases, the Court continued, “the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President.”⁸ This was especially the case, the Court added, “where the duty enjoined is of a mere ministerial character.”⁹ In short, the Court recognized the underlying question of the case to be whether the President’s duty to “take Care that the Laws be faithfully executed” made it constitutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President, and it answered this in the negative.

ArtII.S3.3.5 Interpretations of Law as Part of the President’s Take Care Duties

Because the interpretation of law and its scope is a necessary prerequisite to any enforcement action, the precise scope of the President’s authority to “take Care that the laws be faithfully executed” is informed and shaped by this interpretive task. The power accruing to the President from such interpretations is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, and many other statutes.

Nor is this interpretive task the whole story. Not only do all presidential regulations and orders based on statutes that vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Supreme Court’s reading of such statutes or of the Constitution,¹ but in several early cases, the Supreme Court has suggested that the President can sometimes make law in a more special sense. In the famous Neagle case,² an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life has been threatened by a suitor was attributed to the President and held to be “a law of the United States” in the sense of section 753 of the Revised Statutes, and as such to afford basis for a writ of habeas corpus transferring the marshal, who had killed the attacker, from state to national custody. Speaking for the Court, Justice Samuel Miller inquired: “Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?”³ The Court assumed an affirmative answer to the second branch of this inquiry, after noting several historical precedents.⁴ And, in United States v. Midwest Oil Co.,⁵ the Court ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and non-mineral, from private acquisition, particularly given that Congress had never repudiated the practice.⁶

ArtII.S3.3.6 The President’s Take Care Duties and International Law

The President’s duty to discharge the responsibilities of the United States in international law raises unique foreign relations considerations. One example of a significant exercise of the President’s powers in this context was the closure of the Marconi Wireless Station at Siasconset, Massachusetts, by President Woodrow Wilson—in effort to avoid difficulties with other foreign governments—on the outbreak of the European War in 1914, after the company refused to assure that it would comply with naval censorship regulations. Justifying this drastic invasion of private rights, Attorney General Thomas Gregory said:

The President of the United States is at the head of one of the three great coordinate

departments of the Government. He is Commander in Chief of the Army and the

Navy. . . . If the President is of the opinion that the relations of this country with

foreign nations are, or are likely to be endangered, by action deemed by him

inconsistent with a due neutrality, it is his right and duty to protect such relations; and

in doing so, in the absence of any statutory restrictions, he may act through such

executive office or department as appears best adapted to effectuate the desired

end. . . . I do not hesitate, in view of the extraordinary conditions existing, to advise

that the President, through the Secretary of the Navy or any appropriate department,

close down, or take charge of and operate, the plant . . . should he deem it necessary in

securing obedience to his proclamation of neutrality.¹

ArtII.S3.3.7 Impounding Appropriated Funds

The Take Care Clause has figured in debates between the political branches over the Executive Branch practice of impounding appropriated funds. No definition for this term exists in statute or in Supreme Court case law. One possible definition, though, describes Executive Branch action or inaction that results in a delay or refusal to spend appropriated funds, whether or not a statute authorizes the withholding.

It is difficult to state with certainty how frequently the Executive Branch has used impoundment. In perhaps the earliest example, President Thomas Jefferson delayed spending funds appropriated in 1803 for the purchase of gun boats, a response to international tensions concerning the port of New Orleans.¹ After Congress made the funds available, the President negotiated the Louisiana Purchase, rendering the immediate use of the gun-boat appropriation “unnecessary.”² Presidents in the nineteenth³ and twentieth centuries⁴ similarly signaled a willingness to delay or withhold spending appropriated funds.

Impoundments usually proceeded on the view that an appropriation sets a ceiling on spending for a particular purpose but typically did not mandate that all such sums be spent.⁵ According to this view, if that purpose could be accomplished by spending less than the appropriation’s total amount, there would be no impediment in law to realizing savings.⁶ Impoundments were also justified on the ground that a statute, other than the appropriation itself, authorized the withholding.⁷

Executive impoundment reached its apex under President Richard Nixon, who employed impoundment more frequently than his predecessors.⁸ Often, his Administration justified impoundments by stating that different funding levels,⁹ or different funding models,¹⁰ were preferable to the ones that Congress had selected when it appropriated the funds.

The Nixon impoundments were scrutinized in congressional hearings.¹¹ Members of Congress likened the impoundments to an unconstitutional assertion of a line-item veto.¹² By withholding funding for a program, these Members argued, the President could modify or terminate the program without having to veto formally the entire act that made the withheld funds available.¹³ Administration officials, on the other hand, located the President’s authority to impound funds in, among other places, the Take Care Clause.¹⁴ These officials argued that the President’s duty to ensure faithful execution of the laws was not confined to mechanically spending the funds provided in a particular appropriation. Instead, the President had to “consider all the laws” that bore on fiscal policy (e.g., statutes allegedly bearing on inflation) and accommodate the “purposes” of these other laws when deciding whether to spend all, or only some, of the funds appropriated for a particular program.¹⁵

The constitutional dimensions of impoundment disputes have been confined to the political branches. The Supreme Court has not directly considered the extent of the President’s constitutional authority, if any, to impound funds.¹⁶ However, a case decided in 1838, United States v. Kendall,¹⁷ has been cited as standing for the proposition that the President may not direct the withholding of certain appropriations that, by their terms, mandate spending.¹⁸

In that case, the Court considered a statute directing one official (the Solicitor of the Treasury) to determine amounts the government owed to a mail contractor.¹⁹ A second official (the Postmaster General) was then required to credit the contractor’s account according to the Solicitor’s findings.²⁰ The Postmaster General refused to make the full credit.²¹ When the contractor then asked the federal courts to order that the full credit be made, the Postmaster General responded that only the President could control his execution of the law.²² The Court rejected that argument. The President’s duty to see that the laws be faithfully executed did not include the power to forbid the execution of a law requiring a precise, definite action, such as updating Post Office accounts to reflect the Solicitor’s credit findings.²³

ArtII.S3.4.1 Overview of Executive Privilege

The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the Executive Branch from the Legislative or Judicial Branch of the government. While the Constitution does not expressly confer upon the Executive Branch any such privilege, the Supreme Court has held that executive privilege derives from the constitutional separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution.¹ Although there are various and distinct components to executive privilege,² the privilege’s foundation lies in the proposition that in making judgments and reaching decisions, the President and his advisors must be free to discuss issues candidly, express opinions, and explore options without fear that those deliberations will later be made public.³

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President in the course of exercising its investigatory powers;⁴ government prosecutors may seek information in the course of investigating and prosecuting crimes;⁵ and private parties may seek information in the possession of the President for use as evidence in either a criminal or civil proceeding.⁶ In all of these contexts, the courts have generally assessed any asserted privilege by weighing the President’s need for confidentiality against the interests of the party seeking the information.⁷

Today, it is apparent that executive privilege is qualified rather than absolute. For the vast majority of U.S. history, however, the existence and appropriate scope of the privilege was uncertain and nearly untouched by the courts.⁸ Chief Justice John Marshall referred to the confidentiality of presidential communications in Marbury v. Madison and during the treason trial of former Vice President Aaron Burr,⁹ but in “neither instance [ ] was Marshall forced to definitively decide whether such a presidential privilege existed and if so, in what form.”¹⁰ In fact, the judiciary’s involvement in addressing the privilege’s use in resisting disclosure in the face of either judicial or legislative subpoenas did not begin in earnest until the 1970s and the Administration of Richard Nixon.¹¹ Prior to the Nixon era, executive privilege’s contours were defined, if at all, by historical practice and the actions and interpretations of Congress and the President. And with little further explication coming from the Supreme Court since, the Nixon era remains the defining era of judicial consideration of the privilege.

This lack of judicial involvement is most pronounced in the context of executive privilege disputes between Congress and the President. The Supreme Court has never directly considered the application of executive privilege in the context of a congressional investigation.¹² Lower federal court decisions are similarly scarce. The only appellate-level decision to reach the merits of an executive privilege dispute between Congress and a sitting President occurred nearly 50 years ago.¹³ In light of this near judicial vacuum, the historical actions and interpretations of the branches necessarily play a significant role in establishing the meaning of executive privilege.

ArtII.S3.4.2 Defining Executive Privileges

There is not a single “executive privilege.” Instead, a suite of distinct privileges exist, each of different—though sometimes overlapping—scope.¹ The political branches, in support of their often competing interests and priorities, have adopted somewhat divergent views on these different component privileges. Whereas Congress has generally interpreted executive privilege narrowly, limiting its application to the types of presidential, national security, and diplomatic communications referenced by judicial decisions,² the Executive Branch has historically viewed executive privilege more broadly, providing protections to different categories of documents and communications that implicate Executive Branch confidentiality interests.³ Under the Executive Branch’s interpretation, these privileges include

• the State Secrets Privilege, which protects certain military, diplomatic, and national

security information;⁴

• the Presidential Communications Privilege, which generally protects confidential

communications between the President and his advisers that relate to presidential

decisionmaking, as well as a certain subset of communications not involving the

President but that are still made for purposes of advising the President;⁵

• the Deliberative Process Privilege, which protects pre-decisional and deliberative

communications within Executive Branch agencies;⁶ and

• the Law Enforcement Privilege, which protects the contents of open (and sometimes

closed) law enforcement files, including communications related to investigative and

prosecutorial decisionmaking.⁷

The Executive Branch has tended to consolidate these various privileges into one “executive privilege,” particularly when responding to congressional investigative requests.⁸ Congressional committees, on the other hand, have typically distinguished among the different individual privileges.⁹

The executive privileges may appropriately be treated as distinct, not only because of the different communications they protect, but also because the privileges appear to arise from different sources of law, with some more firmly established in judicial precedent than others. In short, the different privileges apply with different strengths and, in the congressional context, are balanced against Congress’s Article I powers differently. For example, courts have “traditionally shown the utmost deference” to presidential claims of a need to protect military or diplomatic secrets.¹⁰ The President’s more generalized interest in the confidentiality of his other communications, though arising implicitly from the Constitution, has not been “extended this high degree of deference.”¹¹ Because the other privileges have been given less weight, they are assessed differently in the face of an exercise of Congress’s investigative powers. For example, when compared to the Presidential Communications Privilege, the Deliberative Process Privilege is more easily overcome by Congress and “disappears altogether when there is any reason to believe government misconduct occurred.”¹² Its legal source also appears to be different from the Presidential Communications Privilege, as it arises “primarily” from the common law,¹³ but may have a “constitutional dimension.”¹⁴ Least potent are those executive privileges that arise purely from the common law, which have generally been viewed, at least by Congress, as legally insufficient to justify noncompliance with a congressional subpoena.¹⁵

ArtII.S3.4.3 State Secrets Privilege

In civil cases, the government may invoke the State Secrets Privilege to ensure the government is not forced to reveal military or other secrets. By contrast, in criminal cases, the Sixth Amendment guarantees a defendant compulsory process to obtain witnesses, and the Due Process Clause of the Fifth Amendment guarantees access to relevant exculpatory information in possession of the prosecution.¹ Generally speaking, when a judicial order directs the prosecution to provide information to a defendant that the prosecution does not wish to make available, the prosecution has the option of dropping the prosecution to avoid disclosure.²

In 1876, the Supreme Court first recognized the State Secrets Privilege in Totten v. United States.³ Totten involved a breach of contract claim brought by the estate of a former Union Civil War spy against the government for compensation owed for secret wartime espionage services.⁴ The Court dismissed the claim because “as a general principle, [ ] public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.”⁵ The Court reasoned that “[t]he service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed.”⁶

Totten has continued to inform the treatment of claims brought against the government. In 2005, the Supreme Court considered a contract claim brought against the Central Intelligence Agency (CIA) by alleged Cold War spies in Tenet v. Doe.⁷ Affirming the “Totten” bar,⁸ the Tenet Court stated: “Totten precludes judicial review in cases such as respondents’ where success depends upon the existence of their secret espionage relationship with the [g]overnment.”⁹ In 2011, the Supreme Court again applied the Totten bar to dismiss a suit against the United States but this time outside the context of espionage contracts. In General Dynamics Corp. v. United States, the federal government asserted the State Secrets Privilege to prevent disclosing sensitive stealth technology in a defense contract dispute. While the government contractor in General Dynamics had set forth a prima facie valid affirmative defense to the government’s allegation of breach of contract,¹⁰ the Court held that the underlying subject matter of the suit rendered it nonjusticiable and the parties must remain “where they stood when they knocked on the courthouse door.”¹¹ Referring to Totten and Tenet, the Court stated: “We think a similar situation obtains here, and that the same consequence should follow.”¹² In not finding an enforceable contract, the Court held that “[w]here liability depends upon the validity of a plausible . . . defense, and when full litigation of that defense ‘would inevitably lead to the disclosure of ’ state secrets, neither party can obtain judicial relief.”¹³ The Court reasoned: “Both parties—the [g]overnment no less than petitioners—must have assumed the risk that state secrets would prevent the adjudication of claims of inadequate performance.”¹⁴

In a separate line of judicial inquiry regarding protection of state secrets outside the context of contract claims, the Supreme Court articulated an analytical framework for the State Secrets Privilege in its 1953 decision in United States v. Reynolds.¹⁵ Reynolds involved multiple wrongful death claims against the government brought by the widows of three civilians who died aboard a military aircraft that crashed while testing secret electronic equipment.¹⁶ The plaintiffs sought discovery of the official Air Force post-incident report and survivors’ statements that were in the possession of the U.S. Air Force.¹⁷ The Air Force opposed disclosure of the documents as the aircraft and its occupants were engaged in a secret mission.¹⁸

While Reynolds recognized that it is the judiciary’s role to evaluate the validity of a claim of privilege, the Court declined to require that courts automatically compel inspection of the underlying information. The Court stated: “[T]oo much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses.” To evaluate assertions of the State Secrets Privilege, the Reynolds Court identified a two-step analysis. The first requirement is a largely procedural hurdle to assure that the privilege is not “lightly invoked,” in which the head of the department in control of the information in question, after “personal consideration,” invokes the privilege in writing. The second requirement asks the court to evaluate whether there is a reasonable danger that disclosure “will expose military matters which, in the interest of national security, should not be divulged.”

The Supreme Court accepted the government’s claim, holding that courts “must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.”¹⁹ According to the Court, a private litigant’s specific showing of necessity for the information should govern how far the trial court should probe. Where the necessity is strong, the trial court should require a strong showing that the privilege is appropriate, but once that is satisfied, the privilege must prevail no matter how compelling the need.²⁰ While Reynolds dealt with an evidentiary privilege, cases may be “dismissed on the pleadings without ever reaching the question of evidence” in other circumstances.²¹

While Reynolds and Totten remain the foundational cases on the state secrets privilege, the Supreme Court issued a pair of decisions in 2022 that impact the judicial understanding of that privilege. First, in United States v. Zubaydah, the Court determined that a court cannot declare that classified information apparently in the public domain is exempt from the State Secrets Privilege when the United States has not officially confirmed or denied such information.²² Second, in Federal Bureau of Investigation v. Fazaga, the Court decided that certain Foreign Intelligence Surveillance Act of 1978 (FISA) provisions, which specifically require courts to review the underlying classified FISA applications and information to determine the lawfulness of surveillance, do not displace the traditional Reynolds privilege that protects information that would harm national security if disclosed.²³

ArtII.S3.4.4 Presidential Communications Privilege Generally

Deriving implicitly from the President’s powers under Article II and the separation of powers doctrine, the Presidential Communications Privilege (Communications Privilege) protects the confidentiality of the President’s decisionmaking process.¹ The Communications Privilege is grounded on the proposition that to make judgments and reach decisions the President and his advisers must be free to discuss issues candidly, express opinions, and explore options without fear that those deliberations will later be made public.²

The Communications Privilege is qualified, rather than absolute, and applies only to confidential communications made in support of official presidential decisionmaking that directly involve the President or close presidential advisers.³ For the vast majority of U.S. history, however, the existence and appropriate scope of the Communications Privilege was uncertain and nearly untouched by the courts.⁴ While Chief Justice John Marshall referred to the confidentiality of presidential communications in Marbury v. Madison and during the treason trial of former Vice President Aaron Burr,⁵ in “neither instance [ ] was Marshall forced to definitively decide whether such a presidential privilege existed and if so, in what form.”⁶ In fact, the Judiciary’s involvement in addressing the Communications Privilege’s use in resisting disclosure in the face of either judicial or legislative subpoenas did not begin in earnest until the 1970s and the Administration of President Richard Nixon.⁷ Prior to the Nixon era, the Communications Privilege’s contours were instead left to be defined, if at all, by historical practice and the actions and interpretations of Congress and the President.

The years during and immediately following the Nixon Administration are arguably the defining era of the Communications Privilege’s judicial development. It was during that time period (1972–1977) that the courts first confirmed the Communications Privilege’s existence and began to delineate—but did not significantly develop—its application in criminal and civil proceedings, as well as its use in response to exercises of Congress’s oversight and legislative powers.⁸ In each of these contexts, courts were asked to resolve significant but unsettled questions of constitutional law, ranging from whether the President is immune from all compulsory process to the scope and force of presidential claims of the Communications Privilege.⁹

ArtII.S3.4.5 Congressional Access to Presidential Information

Presidents have claimed a right to withhold their communications from Congress since the start of the Republic.¹ Congress’s resistance to such claims, however, is equally grounded in history.² The resulting, recurring, and often prominent disagreements over what has come to be known broadly as “executive privilege” tend to place in opposition two implied and often competing constitutional principles: Congress’s right to obtain information necessary to carry out its legislative functions and the President’s interest in protecting the confidentiality of his (and sometimes his subordinates’) communications.³

Unlike more traditional legal disagreements between parties, resolution of these interbranch executive privilege disputes has not historically come from the courts. Instead, when conflict has been avoided, it has typically been because of a process of compromise and accommodation in which absolute claims—for either access or confidentiality—are relinquished and replaced by a negotiated resolution acceptable to both Congress and the Executive.⁴

The traditional preference for political rather than judicial solutions is supported by the fact that neither Congress nor the President appears to have sought judicial resolution of an interbranch executive privilege dispute until the 1970s.⁵ Courts have also been wary of judicially declared outcomes and have generally sought to avoid adjudicating executive privilege disputes, instead encouraging the political branches to settle their differences while noting that judicial intervention should, as a prudential matter, “be avoided whenever possible” or at least “delayed until all possibilities for settlement have been exhausted.”⁶

As a result, the judiciary has historically played a limited role in determining how executive privilege may be used to restrict congressional access to information.⁷ The Supreme Court has never directly considered applying executive privilege in the context of a congressional investigation.⁸ Lower federal court decisions are similarly scarce.⁹ The only appellate-level decision to reach the merits of an executive privilege dispute between Congress and a sitting President occurred nearly fifty years ago during President Richard Nixon’s administration.¹⁰ In that case, the Senate Select Committee on Presidential Campaign Activities elected to seek a declaratory judgment in the courts with respect to the President’s obligations to obey its subpoenas.¹¹

Although not involving executive privilege, the Court in its 2020 decision, Trump v. Mazars, nevertheless recognized several important separation of powers-based limitations on Congress’s ability to access presidential records.¹² Writing on behalf of the Court, Chief Justice John Roberts began by acknowledging three central limits on all congressional inquiries, regardless of the target of the inquiry: (1) there must be a valid legislative purpose related to a subject of legislation, (2) the purpose of the inquiry must not be for law enforcement or to expose for the sake of exposure, and (3) certain constitutional and common law privileges can limit disclosures of information.¹³ The Court, however, viewed these limitations, standing alone, as inadequately checking Congress’s powers in a dispute with the Executive Branch.¹⁴ After all, according to Mazars, any paper possessed by a President could relate to a conceivable subject of legislation, possibly allowing Congress significant authority to interfere with the Executive Branch.¹⁵

Recognizing that the typical limits on the subpoena power did not prevent Congress from attempting to “aggrandize itself at the President’s expense,” the Chief Justice feared that judicial resolution of such a dispute using only those limits could deter negotiation between the two branches, historically the hallmark of such inquiries, and encourage Congress to seek compliance through the courts.¹⁶ As a result, the Chief Justice instructed lower courts to perform a “careful analysis” using “[s]everal special considerations” that take “adequate account” of the separation of powers principles at stake during a legislative inquiry into the President’s records.¹⁷ Specifically, in such a dispute, courts should, among other considerations, (1) carefully assess whether the confrontation can be avoided by relying on other sources to provide Congress the information it needs in light of its legislative objective; (2) “insist” on a subpoena that is no broader than is reasonably necessary to support Congress’s objective; (3) consider the nature of the evidence of Congress’s legislative purpose, preferring more detailed and substantial evidence to vague or loosely worded evidence of Congress’s purpose; and (4) assess the burdens, such as time and attention, the subpoena imposes on the President.¹⁸

ArtII.S3.4.6 Prosecutorial and Grand Jury Access to Presidential Information

Recognizing that the “public has a right to every man’s evidence,” the Supreme Court has held that the President may be required to testify or produce documents in criminal proceedings when required by the courts.¹ This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the infamous treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.² Specifically, he declared that, in contrast to common law privileges afforded the King of England, the President was not “exempt from the general provisions of the constitution,” like the Sixth Amendment, that provide for compulsory process for the defense.³ Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold specific information from disclosure based on the existence of a privilege.⁴ In the two centuries since the Burr trial, historical practice by the Executive Branch⁵ and Supreme Court rulings “unequivocally and emphatically endorsed” Chief Justice Marshall’s position that the President was subject to federal criminal process.⁶ In 2020, the Court extended the precedent developed in federal criminal proceedings to state criminal proceeding in Trump v. Vance, concluding that the President was not absolutely immune from state criminal subpoenas.⁷

While the President is subject to criminal process, the question remains as to the limits on that process. The Court has recognized several constraints on the ability of a prosecutor to obtain evidence from the President through the use of a criminal subpoena.⁸ First, like any citizen, the President can challenge a particular subpoena on the grounds that it was issued in bad faith or was unduly broad.⁹ Second, the timing and scope of criminal discovery must be informed by the nature of the office of the President—for example, granting deference in scheduling proceedings to avoid significant interference with the President’s official responsibilities.¹⁰ Third, the President can raise subpoena-specific constitutional challenges, arguing that compliance with a particular subpoena would significantly interfere with his efforts to carry out an official duty.¹¹ As the Court first recognized in United States v. Nixon, one particularly notable constitutionally based challenge that a President can lodge against a criminal subpoena is a claim of executive privilege in certain presidential communications.¹²

In Nixon,¹³ the Court confirmed several fundamental principles of the privilege protecting presidential communications.¹⁴ First, Nixon recognized an implied constitutional privilege protecting presidential communications.¹⁵ The Court stated that the “privilege of confidentiality of presidential communications” is “fundamental to the operation of Government and inextricably rooted in the separation of powers” and “the supremacy of each branch within its own assigned area of constitutional duties.”¹⁶ The Court held that the Communications Privilege, however, must not be “expansively construed” as it, like other privileges, is “in derogation of the search for truth.”¹⁷

Second, the Court explicitly reaffirmed its role as the “ultimate interpreter of the Constitution” and the privileges emanating from it, noting that it was the Court, and not the President, that must have the final say on the Communications Privilege.¹⁸

Third, the Court held that the underlying justification for the Communications Privilege related to the “public interest” in the integrity of presidential decisionmaking.¹⁹ “Human experience,” the Court reasoned, “teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”²⁰ The Court added that there is a

public interest in candid, objective, and even blunt or harsh opinions in Presidential

decisionmaking. 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.²¹

As such, the Court held that “[t]he President’s need for complete candor and objectivity from advisers calls for great deference from the courts” and justified a “presumptive privilege for Presidential communications” made in “the exercise of Art. II powers.”²²

Fourth, the Court emphasized that the implied constitutional Privilege was not “absolute” or “unqualified,” at least not when founded upon a “generalized” need for confidentiality in “nonmilitary and nondiplomatic discussions.”²³ Instead, when the Communications Privilege is invoked in response to a judicial subpoena, a “confrontation with other values arise[s]” requiring courts to “resolve those competing interests in a manner that preserves the essential functions of each branch.”²⁴ The President’s interest, therefore, would need to be balanced against the “fundamental and comprehensive” need to “develop all relevant facts” and evidence in a criminal case.²⁵ In weighing these interests, the Court held the following:

We cannot conclude that advisers will be moved to temper the candor of their remarks

by the infrequent occasions of disclosure because of the possibility that such

conversations will be called for in the context of a criminal prosecution. On the other

hand, the allowance of the privilege to withhold evidence that is demonstrably relevant

in a criminal trial would cut deeply into the guarantee of due process of law and

gravely impair the basic functions of the courts.

As a result, the Communications Privilege, when based “only on a generalized interest in confidentiality,” “cannot prevail over the fundamental demands of . . . the fair administration of justice” and therefore “must yield to the demonstrated, specific need for evidence in a pending criminal trial.”²⁶

Finally, Nixon approved a “staged decisional structure.” If a President determines that “compliance with a subpoena would be injurious to the public interest he may properly . . . invoke a claim of privilege.”²⁷ Such an invocation creates “presumptive” protections for the subpoenaed material. As a result of these initial protections, a court may only order in camera review when the party has “made a sufficient showing to rebut the presumption.”²⁸ Once the presumptively privileged material is reviewed in camera, a court may then direct the further disclosure of all “relevant” and “admissible” information.²⁹

The Nixon opinion made two additional points worth noting. First, the Court repeatedly suggested that its analysis may have been different if instead of a generalized interest in the confidentiality of his communications, the President had asserted a claim of “military or diplomatic secrets.”³⁰ “As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.”³¹ Second, the Court explicitly disclaimed any attempt to assess the application of the Communications Privilege in a congressional investigation: “we are not here concerned with the balance between the President’s generalized interest in confidentiality . . . and congressional demands for information.”³²

ArtII.S3.4.7 Statutory Requirements and Communications Privilege

The Supreme Court considered the nature of executive privilege in a statutory context in its 1977 decision of Nixon v. Administrator of General Services (Nixon II).¹ In that case, former President Richard Nixon challenged the Presidential Recordings and Materials Preservation Act, a statute that nullified a contract that gave Nixon control over his own presidential records. The Act instead established a process to secure and preserve his records with a government agency.² Along with other claims, Nixon argued that provisions of the law permitting the screening and cataloguing of presidential materials by Executive Branch archivists impermissibly infringed on his Privilege. Nixon II was therefore distinct from Nixon I, because it concerned disclosure within the Executive Branch pursuant to a statutory provision, rather than disclosure outside the Executive Branch pursuant to a subpoena.

The Court rejected former President Nixon’s position, holding that the statutory arrangement for preservation of the President’s records worked only a “very limited intrusion” into the President’s confidentiality interests, especially given that the law built in safeguards to prevent the public disclosure of protected materials.³ Like the previous cases, the Court engaged in a balancing test, evaluating whether the public interest justified such an intrusion, ultimately holding that it did. Congress had acted, the Court determined, based on a variety of “important objectives,” including to “preserve the materials for legitimate historical and governmental purposes”; “restore public confidence in our political processes by preserving the materials as a source for facilitating a full airing of the events leading to appellant’s resignation”; and based on its “need to understand how those political processes had in fact operated in order to gauge the necessity for remedial legislation.”⁴

The Court’s view of the severity of the intrusion appears to have been colored by the fact that the claim was being made by a former President.⁵ Although recognizing that the Communications Privilege “survives the individual President’s tenure” and thus can be invoked by former Presidents to protect covered communications occurring while in office, the Court nonetheless noted that the President’s interest in confidentiality is “subject to erosion over time after an administration leaves office.”⁶

Nixon II also provided the Court’s clearest explanation of the types of communications covered by the Communications Privilege. Interpreting Nixon, the Court held that the “the privilege is limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’”⁷ This passage reflects the fundamental principle that the Communications Privilege does not act as a generalized safeguard for “Presidential privacy,” but instead protects the public interest in effective and deliberative presidential decisionmaking. As such, the Communications Privilege applies not to all presidential communications, but only those that bear a relationship to a presidential decision.

Nixon II marked the end of President Nixon’s lengthy and largely unsuccessful legal battles over the release of his communications. But the importance of the Nixon-era cases transcends those materials. The cases established the fundamental characteristics of the Communications Privilege: (1) there is a qualified constitutional privilege that provides presumptive protections to confidential communications made to assist presidential decisionmaking; (2) the Communications Privilege can be invoked to resist disclosure of covered communications in various contexts; and (3) the Communications Privilege is not absolute, and can be overcome when the party seeking the information can articulate a sufficient showing of need.

ArtII.S3.4.8 Separation of Powers and Communications Privilege

In 2004, the Supreme Court issued Cheney v. United States District Court¹ in which it reaffirmed distinctions first articulated in the Nixon-era cases between civil and criminal proceedings and expounded on the relationship between the Communications Privilege and the separation of powers.

The Cheney decision interacted with the Communications Privilege in a complicated procedural posture, and for this reason the implications of the decision to more traditional scenarios, especially to the congressional context, are difficult to discern. In Cheney, a federal district court had entered orders in a Federal Advisory Committee Act (FACA) lawsuit allowing discovery of documents relating to the structure and operation of the National Energy Policy Development Group (NEPDG), a task force chaired by the Vice President and established to give policy recommendations on energy issues to the President.² The George W. Bush Administration, though not asserting executive privilege, challenged that discovery order on the ground that it represented a “substantial intrusion[ ] on the process by which those in closest operational proximity to the President advise the President” in violation of the separation of powers.³ The district court and the D.C. Circuit rejected the Administration’s arguments, mainly because the Administration had another means to protect its interests; it could assert executive privilege in response to the civil discovery subpoena.⁴

The Supreme Court reversed, holding that when a lower court has allowed “unnecessarily broad” discovery, reviewing courts have authority to “explore other avenues, short of forcing the Executive to invoke privilege.”⁵ The Court reasoned that to require the Executive Branch to assert the Communications Privilege in such a scenario would ignore the “weighty separation of powers objections raised in the case,” because “[o]nce executive privilege is asserted, coequal branches of the Government are set on a collision course.”⁶ The Court determined that the lower courts had “labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government’s separation of powers objections.”⁷ Cheney, therefore, appears to suggest that there are separation of powers concerns associated with executive confidentiality issues that attach even before executive privilege is asserted.⁸

Cheney also reaffirmed the principle that the confidentiality interests associated with the Communications Privilege are weighed differently in different types of proceedings. In fact, the nature of the proceeding, whether civil or criminal, appears to affect both sides of the judicially developed balancing test. As for the requesting party, the Court held that “[t]he need for information for use in civil cases, while far from negligible, does not share the urgency or significance of [a] criminal subpoena,” where the need for the information “is much weightier.”⁹ As for the President’s interest, the court viewed the potential for a civil subpoena to disrupt the functioning of the Executive Branch as far greater than a criminal subpoena. In the criminal context, “there are various constraints . . . to filter out insubstantial legal claims,” but “there are no analogous checks in the civil discovery process.”¹⁰ Like past cases, however, Cheney did not address how a congressional proceeding relates to either civil or criminal proceedings.¹¹

ArtII.S3.4.9 Former Presidents and Communications Privilege

In Nixon II, the Supreme Court determined that the Communications Privilege continues to protect presidential communications after the conclusion of the Administration within which the communication occurred and may be asserted by the former President.¹ As described above, the Court found that a former President may “legitimately” assert the Communications Privilege to prevent disclosure of his official records after he has left office.² The Court reasoned that the confidentiality necessary to ensure the free exchange of ideas between the President and his advisers while the President is in office

cannot be measured by the few months or years between the submission of the

information and the end of the President’s tenure; the privilege is not for the benefit of

the President as an individual, but for the benefit of the Republic. Therefore the

privilege survives the individual President’s tenure.³

The Court’s determination appears to have rested on the reasoning that the general purpose of the Communications Privilege—ensuring the provision of frank advice to the President—could be threatened or undermined no matter when the disclosure of the covered communications occurs. Nixon II distinguished former Presidents from incumbents in three important ways. First, the Court explicitly stated that “to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, a former President is in less need of it than an incumbent.”⁴ Second, the Court concluded that the “expectation of the confidentiality of executive communications” is “subject to erosion over time after an administration leaves office.”⁵ Thus, the strength of a former President’s Communications Privilege claim appears to dwindle as time passes.

Third and perhaps most importantly, the Court determined that because only the sitting President is “charged with performance of executive duty under the Constitution,” he is “in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.”⁶ In Nixon II, the fact that President Carte—the sitting President at the time—did not support former President Nixon’s privilege claim “detract[ed] from the weight of” Nixon’s assertion.⁷ In the Court’s view, it is the incumbent President who is better situated to make determinations about the need for executive confidentiality, because it is the incumbent President who may suffer the harm that the Communications Privilege purports to protect against if privileged documents were disclosed (namely that current advisers would be dissuaded from giving the incumbent President candid advice).⁸ As a result, when the incumbent President does not support a former President’s privilege claim, the strength of the claim declines.

The importance of the incumbent’s concurrence to a privilege claim by a former President was recently reaffirmed in Trump v. Thompson.⁹ Thompson arose from the inquiry conducted by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Select Committee). As part of its investigation, the Select Committee requested that the National Archives and Records Administration (NARA) produce relevant presidential records from the former Trump Administration pursuant to the Presidential Records Act (PRA).¹⁰ The request sought various categories of White House communications and documents created on or around January 6, 2021. Under the PRA, if any congressional committee requests a presidential record on a “matter within its jurisdiction” that is “needed for the conduct of its business and that is not otherwise available,” the National Archives “shall” make the record available.¹¹ However, consistent with principles established in Nixon and Nixon II, the PRA also preserves the right of both current and former Presidents to assert privilege claims by providing that disclosure by NARA is “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke.”¹²

Shortly thereafter, President Joseph Biden determined that under the “unique and extraordinary circumstances” and because of Congress’s “compelling need” to understand the “horrific events” of January 6, asserting executive privilege over the requested documents would not be “in the best interests of the United States.”¹³ Former President Trump disagreed and notified the Archivist that he was asserting the Communications Privilege. After President Biden clarified that he would “not uphold the former President’s assertion of Privilege,” former President Trump filed suit in federal district court to block NARA from disclosing privileged documents to the Select Committee.¹⁴

The D.C. District Court in Thompson viewed the case as “a dispute between a former and incumbent President.”¹⁵ Citing to Nixon II, the court stated that because the incumbent President is “best suited” to identify and determine the best interests of the Executive Branch, former President Trump’s Privilege claim was “outweighed by President Biden’s decision not to uphold the Privilege.”¹⁶ Moreover, the court reasoned that to side with the former President would not only second guess the sitting President’s judgment, but also the Legislative Branch’s judgment—for both President Biden and the House agreed that the requested documents should be disclosed.¹⁷

The D.C. Circuit affirmed the district court decision on appeal. The court acknowledged, with reference to Nixon II, that there was “no question” that former President Trump could assert the Communications Privilege and that the Communications Privilege was “of constitutional stature.”¹⁸ Nevertheless, the court held that a “rare and formidable alignment of [three] factors” supported disclosure of the documents to the Committee and outweighed the former President’s interest in confidentiality.¹⁹

First, the court stated that President Biden’s determination that it was neither in the Executive Branch’s nor the public’s interest to assert Privilege over the requested documents “carries immense weight in overcoming the former President’s” claim.²⁰ Consistent with previous case law, the court viewed President Biden as “the principal holder and keeper of executive privilege” and the judiciary as “ill equipped to . . . second guess the expert judgment of the sitting President.”²¹

Second, the House had a “uniquely weighty interest in investigating the causes and circumstances” of the January 6 attack on the U.S. Capitol.²² Indeed, the court noted that having presented a “sound factual predicate” for the requested documents, “there would seem to be few, if any, more imperative interests squarely within Congress’s wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business.”²³

Third, and “weighing still more heavily” against former President Trump, was “the fact that the judgment of the Political Branches is unified as to these particular documents.”²⁴ The court was unwilling to “needlessly disturb ‘the compromises and working arrangements that” the Congress and the President had already reached.²⁵

In light of these three factors, the D.C. Circuit held that “the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed [former President Trump’s] generalized concerns for Executive Branch confidentiality.”²⁶ That holding was given added significance by the court’s determination that it would have been compelled to reach that conclusion “under any of the tests advocated by former President Trump,” including the “demonstrated, specific need” standard from Nixon or the “demonstrably critical” standard from Senate Select.²⁷ As such, it appears the Select Committee would have been able to overcome the Communications Privilege in this circumstance even if President Biden had supported former President Trump’s Privilege claim.

The Supreme Court picked up on this point in denying former President Trump’s petition to stay the D.C. Circuit decision.²⁸ In interpreting the opinion below, the Supreme Court—in an unsigned order—reasoned that Mr. Trump’s “status as a former President [ ] made no difference to the court’s decision” since the D.C. Circuit had “concluded that President Trump’s claims would have failed even if he were an incumbent.”²⁹ Because the former President’s assertion of privilege would have been unsuccessful either way, the Court declared the D.C. Circuit’s discussion of when executive privilege claims could properly be asserted by former Presidents to be nonbinding dictum.³⁰

ArtII.S3.4.10 Deliberative Process and Law Enforcement Privileges

Of the various executive privileges, the Deliberative Process Privilege is the one most frequently asserted.¹ The purpose underlying the Privilege is to protect the “‘quality of agency decisions’ by allowing government officials freedom to debate alternative approaches in private.”² But the Deliberative Process Privilege applies only to those documents and communications that are predecisional, meaning they are created prior to the agency reaching its final decision, and deliberative, meaning they relate to the thought process of Executive officials and are not purely factual.³ The Privilege does not protect entire documents. Rather, the Executive Branch must disclose non-privileged factual information that can be reasonably segregated from privileged information in the requested documents. And like the other executive privileges, the Deliberative Process Privilege is overcome by an adequate showing of need.⁴

The idea of the Deliberative Process Privilege was developed under the Freedom of Information Act (FOIA) to provide limited protection for communications and documents evidencing the predecisional considerations of agency officials.⁵ Over time, the Executive Branch has melded this deliberative process idea with the recognized confidentiality interest in the President’s communications with close advisers, such that the privilege would extend to any policy deliberations or communications within the Executive Branch in which the President may have an interest.

The result has been a presumption by the Executive, though regularly contested by Congress, that its predecisional deliberations are beyond the scope of congressional demand. For instance, Attorney General William French Smith advised President Ronald Reagan that “Congress will have a legitimate need to know the preliminary positions taken by Executive Branch officials during internal deliberations only in the rarest of circumstances.”⁶ According to this view, the need for the Executive to prevent disclosure of its deliberations is at its apex when Congress attempts to discover information about ongoing policymaking within the Executive Branch. In that case, the Executive has argued, the deliberative process exemption serves as an important boundary marking the separation of powers. When congressional oversight “is used as a means of participating directly in an ongoing process of decisionmaking within the Executive Branch, it oversteps the bounds of the proper legislative function.”⁷

The legal justifications asserted by the Barack Obama Administration for withholding documents from Congress during a House probe into Operation Fast and Furious appear to reflect a heavy reliance on the Deliberative Process Privilege. In a letter to the President asking him to invoke executive privilege over the subpoenaed documents, Attorney General Eric Holder noted that “Presidents have repeatedly asserted executive privilege to protect confidential Executive Branch deliberative materials from congressional subpoena.”⁸ The Attorney General went on to argue that “[i]t is well established that ‘the doctrine of executive privilege . . . encompasses Executive Branch deliberative communications.’”⁹ The dispute ultimately reached the courts, and although the litigation was eventually settled, a federal district court initially held that after “balancing the competing interests” at stake, in this instance the Deliberative Process Privilege must yield to Congress’s “legitimate need” for the documents.¹⁰

Similar to Deliberative Process Privilege, the Law Enforcement Privilege operates to protect information, the disclosure of which by the Executive Branch would have a chilling effect on conducting “the candid and independent analysis essential to just and effective law enforcement.”¹¹

ArtII.S3.5.1 Presidential Immunity to Suits and Official Conduct

In its 1867 decision Mississippi v. Johnson, the Supreme Court established that the President is largely beyond the reach of the judiciary by holding that it could not direct President Andrew Johnson in how he exercised his “purely executive and political” powers.¹ The Court stated, it had “no jurisdiction . . . to enjoin the President in the performance of his official duties.”²

In subsequent decisions, however, the Court made clear that Johnson does not stand for the proposition that the President is immune from judicial process. For example, in United States v. Nixon,³ the Court held that President Richard Nixon was amenable to a subpoena to produce evidence for use in a federal criminal case. There, the President had argued that he was immune to judicial process, claiming “that the independence of the Executive Branch within its own sphere insulates a President from a judicial subpoena in an ongoing criminal prosecution.”⁴ The Supreme Court unanimously disagreed, holding that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”⁵ The Court noted that the constitutional duty of courts “to do justice in criminal prosecutions” was counterbalanced by the claim of presidential immunity. To accept the President’s argument, the Court further reasoned, would undermine the separation of powers that was at the core of “a workable government” as well as “gravely impair the role of the courts under Art. III.”⁶

Throughout the Watergate investigation, it was unclear whether the President could be subject to criminal prosecution prior to being convicted upon impeachment.⁷ The Court, however, resolved that courts may require the President to testify or produce documents in criminal proceedings.⁸ This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.⁹ Specifically, Chief Justice Marshall declared that, in contrast to common law privileges afforded the King of England, the President was not “exempt from the general provisions of the constitution,” like the Sixth Amendment, which provides the defense compulsory process.¹⁰

Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold information from disclosure based on executive privilege.¹¹ In the two centuries since the Burr trial, the Executive Branch’s practices¹² and Supreme Court rulings “unequivocally and emphatically endorsed” Chief Justice Marshall’s position that the President was subject to federal criminal process.¹³ In its 2020 opinion in Trump v. Vance, the Court extended this precedent to state criminal proceedings, concluding that the President was not absolutely immune from state criminal subpoenas.¹⁴

Finally, with respect to civil liability, the Court held in Nixon v. Fitzgerald that the President is absolutely immune in actions for civil damages for all acts within the “outer perimeter” of his official duties.¹⁵ The Court’s close decision was premised on the President’s “unique position in the constitutional scheme,” that is, the Court conducted a “kind of ‘public policy’ analysis” of the “policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.”¹⁶ Although the Constitution expressly afforded Members of Congress immunity in matters arising from “speech or debate” and was silent on presidential immunity, the Court nonetheless considered immunity to be “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.”¹⁷

While the Court relied, in part, upon its practice of finding immunity for officers, such as judges, for whom the Constitution is silent, but for which a long common-law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous,¹⁸ the Court focused on the fact that the President is different from all other executive officials. The President is charged with a long list of “supervisory and policy responsibilities of utmost discretion and sensitivity,”¹⁹ and diversion of his energies by concerns with private lawsuits would “raise unique risks to the effective functioning of government.”²⁰ Moreover, the presidential privilege is rooted in the separation of powers doctrine, counseling courts to tread carefully before intruding. While some interests are important enough to require judicial action, the Court reasoned that “merely private suit[s] for damages based on a President’s official acts” do not serve this “broad public interest” necessitating the courts to act.²¹ Finally, qualified immunity would not adequately protect the President, because judicial inquiry into a functional analysis of his actions would bring with it the evil immunity it was to prevent; absolute immunity was required.²²

ArtII.S3.5.2 Presidential Immunity to Suits and Unofficial Conduct

In Clinton v. Jones,¹ the Court, in a case of first impression, held that President William Clinton did not have qualified immunity from civil suit for conduct alleged to have taken place prior to his election, and therefore denied President Clinton’s request to delay both the trial and discovery. The Court held that its precedents affording the President immunity from suit for his official conduct—primarily so that the President could perform his duties effectively absent fear that a particular decision might lead to personal liability—did not apply when the alleged conduct at issue had occurred before his election. Moreover, the Supreme Court observed, the separation of powers doctrine did not require a stay of all private actions against the President, as the trial court had sufficient powers to accommodate the President’s schedule and his workload so as not to impede the President from performing his duties. Finally, the Court stated that allowing such suits to proceed would not generate a large volume of politically motivated harassing and frivolous litigation. Congress has the power, the Court advised, if it should think necessary, to protect the President.².

While courts may be unable to compel the President to act or prevent him from acting, his acts, when performed, are generally subject to judicial review and disallowance. Typically, the President’s subordinates, through whom he acts, may be sued pursuant to a legal fiction to enjoin committing acts that might lead to irreparable damage³ or to compel by writ of mandamus performing a duty required by law.⁴ Such suits are usually brought in the United States District Court for the District of Columbia.⁵ In common law, courts may hold a subordinate executive officer personally liable for damages that resulted from any act the officer committed that was beyond his authority,⁶ although he has immunity for anything, even malicious wrongdoing, that he does in performing his duties.⁷

Different rules prevail when a plaintiff sues an officer for wrongs based on a “constitutional tort.”⁸ The Court has suggested that, in some “sensitive” areas, officers acting in the “outer perimeter” of their duties may be accorded absolute immunity from liability.⁹ To reach such officers for acts for which they can be held responsible, courts must use the general “federal question” jurisdictional statute.¹⁰

ArtII.S3.5.3 Qualified Immunity Doctrine

While the courts may be unable to compel the President to act or to prevent him from acting, his acts, when performed, are in proper cases subject to judicial review and disallowance. Typically, the subordinates through whom he acts may be sued, in a form of legal fiction, to enjoin the commission of acts which might lead to irreparable damage¹ or to compel by writ of mandamus the performance of a duty definitely required by law.² Such suits are usually brought in the United States District Court for the District of Columbia.³ In suits under the common law, a subordinate executive officer may be held personally liable in damages for any act done in excess of authority,⁴ although immunity exists for anything, even malicious wrongdoing, done in the course of his duties.⁵

Different rules prevail when such an official is sued for a “constitutional tort” for wrongs allegedly in violation of our basic charter,⁶ although the Court has hinted that in some “sensitive” areas officials acting in the “outer perimeter” of their duties may be accorded an absolute immunity from liability.⁷ Jurisdiction to reach such officers for acts for which they can be held responsible must be under the general “federal question” jurisdictional statute, which, as recently amended, requires no jurisdictional amount.⁸