Background on Executive Privilege

Aziz Huq
March 23, 2007

... The presidential communications privilege protects from disclosure any communications that are either by the President directly or by his immediate advisors in the Office of the President to the President. The Supreme Court recognized this privilege in Nixon v. United States and Nixon v. Administrator of General Services. The Court grounded the privilege in the need for candor in executive branch decision-making and in the supremacy of each branch within its own assigned area of constitutional duties ...

... the presidential communications privilege can be overcome by a sufficient showing of need. Indeed, in one of the first judicial recognitions of an executive branch secrecy claim, Chief Justice John Marshall endorsed the idea that the privilege is defeasible. In other words, however well-established the privilege may be, it has never been absolute ...

The "deliberative process privilege" is "distinct and ... different" from the presidential communications privilege. It protects executive branch officials' communications that are "predecisional" and a "direct part of the deliberative process" ...

Properly invoked, the deliberative process privilege is narrower than the presidential communications privilege "primarily because the deliberative process privilege does not extend to purely factual material" unless "it is inextricably intertwined with policy-making processes." It is a "common law privilege," not a constitutional one; hence, it is more susceptible to "congressional or judicial negation" than the presidential communications privilege. Further, "the privilege disappears ... when there is any reason to believe government misconduct occurred" ...

Federal courts have assumed that governmental entities have the same attorney-client protection as private corporate entities ... A governmental attorney-client privilege claim, however, cannot be sustained in the face of accusations of criminal wrongdoing ...

Courts have distinguished issues of national security from other species of presidential privilege and granted the executive considerably more discretion with regard to such claims ...

... Congress has authority to resist a national security-related privilege claim ...

https://www.brennancenter.org/analysis/background-executive-privilege