Executive privilege is a concept invoked by the President of the United States to avoid disclosing information which the President feels could compromise the workings of the executive branch of government. In strict point of fact, there is no Constitutional basis for this privilege, and some Presidents have lost their attempts to invoke it, including President George Washington, the first to attempt to use this concept.
The justification for executive privilege is that it is guaranteed by the separation of powers clause in the Constitution. According to this logic, if the President was compelled to reveal certain sensitive information by the judicial or legislative branch, this would be a breach of the separation of powers. Furthermore, executive privilege is also supposed to protect national security and the Presidential administration itself by ensuring that executive officials feel free to communicate with each other and the President about issues of importance.
The term “executive privilege” was coined by President Dwight Eisenhower, but he was far from the first or last to invoke this concept to evade testimony. In addition to the President, this privilege is also assumed to protect key members of the administration, including the Vice-President and other executive officials. In cases where officials evade testimony, executive privilege tends to be more widely accepted, under the blanket of executive immunity. In instances where Presidents and their administrations invoke it to resist warrants and avoid surrendering subpoenaed materials, they can face a battle.
In 1974, President Nixon attempted to invoke executive privilege and he failed. In addition to failing, he also brought the issue to the forefront of the American mind and to Congress, leading to the passage of a law which was designed to more clearly define and restrict this privilege. The concept continues to be invoked by Presidential administrations of all stripes, and it continues to be fought by the legislative and judicial branches of the American government.
Some people feel that executive privilege is appropriate, and that without it, the executive branch could be too exposed. Others feel that it is sometimes evoked to avoid the exposure of illegal activities in the White House, and that Presidents and other executive officials should be compelled to testify, submit to warrants, and comply with subpoenas. Like many contentious legal issues in the United States, the matter will probably never be satisfactorily resolved, much to the delight of the lawyers and judges who are paid to wrangle about such issues.
