Editing Executive privilege

{{Short description|Presidential and top officials' right to resist some subpoenas}}
{{Use mdy dates|date=June 2017}}
{{United States constitutional law}}
'''Executive privilege''' is the right of the [[president of the United States]] and other members of the [[executive (government)|executive branch]] to maintain confidential communications under certain circumstances within the executive branch and to resist some [[subpoena]]s and other oversight by the [[legislature|legislative]] and [[judiciary|judicial branch]]es of government in pursuit of particular information or personnel relating to those confidential communications. The right comes into effect when revealing the information would impair governmental functions. Neither executive privilege nor the oversight power of [[United States Congress|Congress]] is explicitly mentioned in the [[United States Constitution]].<ref>[[Archibald Cox|Cox, Archibald]].  [http://scholarship.law.upenn.edu/penn_law_review/vol122/iss6/1 "Executive Privilege"], ''[[University of Pennsylvania Law Review]]'', Volume 122, page 1384 (1974).</ref>  However, the [[Supreme Court of the United States]] has ruled that executive privilege and congressional oversight each are a consequence of the doctrine of the [[Separation of powers under the United States Constitution|separation of powers]], derived from the supremacy of each branch in its area of constitutional activity.<ref>Chief Justice Burger, writing for the majority in ''US v. Nixon'', noted: "Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=418&invol=683 ''United States v. Nixon''], 418 U.S. 683 (1974) (Supreme Court opinion at FindLaw)</ref>

The Supreme Court confirmed the legitimacy of this doctrine in ''[[United States v. Nixon]]'' in the context of a subpoena emanating from the judiciary instead of emanating from Congress.<ref name=USvNixon>[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=418&invol=683 ''United States v. Nixon''], 418 U.S. 683 (1974) (Supreme Court opinion at FindLaw)</ref> The Court held that there is a qualified privilege, which once invoked, creates a presumption of privilege, and the party seeking the documents must then make a "sufficient showing" that the "presidential material" is "essential to the justice of the case". [[Chief Justice of the United States|Chief Justice]] [[Warren E. Burger|Warren Burger]] further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.<ref name=USvNixon />  Regarding requests from Congress (instead of from the courts) for executive branch information, as of a 2014 study by the [[Congressional Research Service]],<ref name=CRS>Garvey, Todd.  [https://fas.org/sgp/crs/secrecy/R42670.pdf Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments], [[Congressional Research Service]], p. 1 (2014).</ref> only two federal court cases had addressed the merits of executive privilege in such a context, and neither of those cases reached the Supreme Court.<ref>''[http://openjurist.org/498/f2d/725/senate-select-committee-on-presidential-campaign-activities-v-m-nixon Senate Select Comm. on Presidential Campaign Activities v. Nixon]'', 498 F.2d 725 (D.C. Cir. 1974); ''[https://www.courtlistener.com/opinion/1810993/committee-on-jud-us-house-of-repres-v-miers/ Comm. on the Judiciary v. Miers]'', 558 F. Supp. 2d 53 (D.D.C. 2008)</ref>

In addition to which branch of government is requesting the information, another characteristic of executive privilege is whether it involves a "presidential communications privilege" or instead a "[[deliberative process privilege]]" or some other type of privilege.<ref name=CRS /> The deliberative process privilege is often considered to be rooted in [[common law]]. In contrast, the presidential communications privilege is often considered rooted in the separation of powers, thus making the deliberative process privilege less difficult to overcome.<ref name=CRS /><ref name=Narayan>{{cite web|url=http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4406&context=flr|title=Proper Assertion of the Deliberative Process Principle|author=Narayan, S.| page= 6|website=fordham.edu|access-date=June 3, 2017}}</ref> Generally speaking, presidents, congresses and courts have historically tended to sidestep open confrontations through compromise and mutual deference because of previous practice and precedents regarding the exercise of executive privilege.<ref name=CRS />

==Early precedents==
[[Deliberative process privilege]] is a specific instance of the more general principle of executive privilege.  It is usually considered to be based upon common law rather than separation of powers, and its history traces back to the English crown privilege (now known as [[public-interest immunity]]).<ref name=Narayan />  In contrast, the presidential communications privilege is another specific instance of executive privilege, usually considered based upon the separation of powers. Therefore, it is more difficult to overcome than the deliberative process privilege.<ref name=CRS />  A significant requirement of the presidential communications privilege is that it can only protect communications sent or received by the president or his immediate advisors. In contrast, the deliberative process privilege may extend further down the chain of command.<ref name=CRS />

In the context of privilege assertions by United States presidents, law professor [[Michael C. Dorf|Michael Dorf]] has written: "In 1796, President [[George Washington]] refused to comply with a request by the House of Representatives for documents related to the negotiation of the then-recently adopted [[Jay Treaty]] with the [[Kingdom of Great Britain]]. Washington reasoned that the Senate alone plays a role in the ratification of treaties, and therefore the House had no legitimate claim to the material. Therefore, Washington provided the documents to the Senate but not the House."<ref>{{cite web|url=https://supreme.findlaw.com/legal-commentary/a-brief-history-of-executive-privilege-from-george-washington-through-dick-cheney.html|title=A Brief History Of Executive Privilege, From George Washington Through Dick Cheney|author=Dorf, Michael |date=February 6, 2002 |website=Findlaw|access-date=November 19, 2019}}</ref>

President [[Thomas Jefferson]] continued the precedent for this in the trial of [[Aaron Burr]] for [[treason]] in 1809. Burr asked the court to issue a ''[[subpoena duces tecum]]'' to compel Jefferson to testify or provide his private letters concerning Burr. Chief Justice [[John Marshall]], a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the [[Sixth Amendment to the United States Constitution|Sixth Amendment]] to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president, would be the judge of that. Jefferson refused to testify personally but provided selected letters.

In 1833, President [[Andrew Jackson]] cited executive privilege when Senator [[Henry Clay]] demanded that he produce documents concerning statements the president made to his cabinet about the removal of federal deposits from the [[Second Bank of the United States]] during the [[Bank War]].<ref>David and Jeanne Heidler, ''Henry Clay: The Essential American'' (2010) p. 264</ref>

==Cold War era==
During 1947–49, several major security cases became known to Congress. There followed a series of investigations, culminating in the famous [[Alger Hiss|Hiss]]–[[Whittaker Chambers|Chambers]] case of 1948. At that point, the [[Harry S. Truman|Truman]] Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems.{{Citation needed|date=June 2017}} Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters. Investigation of the State Department and other cases was stymied, and the matter was left unresolved.

During the [[Army–McCarthy hearings]] in 1954, [[Dwight D. Eisenhower|Eisenhower]] used the claim of executive privilege to forbid the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Department of Defense employees were also instructed not to testify on such conversations or produce any such documents or reproductions.<ref>''Blacklisted by History'', p. 575</ref> This was done to refuse the [[McCarthyism|McCarthy Committee]] subpoenas of transcripts of monitored telephone calls from Army officials, as well as information on meetings between Eisenhower officials relating to the hearings. This was done in the form of a letter from Eisenhower to the Department of Defense and an accompanying memo from Eisenhower Justice. The reasoning behind the order was that there was a need for "candid" exchanges among executive employees in giving "advice" to one another. In the end, Eisenhower invoked the claim 44 times between 1955 and 1960.

==''United States v. Nixon''==
{{more citations needed section|date=June 2009}}
The Supreme Court addressed executive privilege in ''[[United States v. Nixon]]'', the 1974 case involving the demand by [[Watergate scandal|Watergate]] [[special prosecutor]] [[Archibald Cox]] that President [[Richard Nixon]] produce the audiotapes of conversations he and his colleagues had in the [[Oval Office]] of the [[White House]] in connection with criminal charges being brought against members of the Nixon Administration for breaking into the Watergate complex. President Nixon invoked the privilege and refused to produce any records.

The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties" and that "[h]uman experience 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." The Supreme Court stated: "To read the [[Article Two of the United States Constitution|Article II]] powers of the president as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under [[Article Three of the United States Constitution|Article III]]." Because Nixon had asserted only a generalized need for confidentiality, the Court held that the more considerable public interest in obtaining the truth in the context of a criminal prosecution took precedence.

{{Quote|text=Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive's Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive's claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These 'occasion[s] for constitutional confrontation between the two branches' are likely to be avoided whenever possible. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=418&invol=683 ''United States v. Nixon''], supra, at 692.<ref>Holding, Reynolds. ''Time'', March 21, 2007. {{cite magazine|url=http://www.time.com/time/nation/article/0,8599,1601450,00.html|archive-url=https://web.archive.org/web/20070324053424/http://www.time.com/time/nation/article/0,8599,1601450,00.html|url-status=dead|archive-date=March 24, 2007|title=The Executive Privilege Showdown|access-date=2007-03-27 | magazine=Time | date=March 21, 2007 | first=Reynolds | last=Holding}}</ref>}}

==Post-Watergate era==
===Ford administration===
In the wake of Nixon's heavy use of executive privilege to block investigations of his actions, Ford was scrupulous in minimizing its usage. However, that complicated his efforts to keep congressional investigations under control. Political scientist [[Mark J. Rozell]] concludes that Ford's:
: failure to enunciate a formal executive privilege policy made it more difficult to explain his position to Congress. He concludes that Ford's actions were prudent; they likely salvaged executive privilege from the graveyard of eroded presidential entitlements because of his recognition that the Congress was likely to challenge any presidential use of that unpopular perquisite.<ref>Mark J. Rozell,  "Executive Privilege in the Ford Administration: Prudence in the Exercise of Presidential Power." ''Presidential Studies Quarterly'' 28#2 (1998): 286-298 [https://www.jstor.org/stable/27551860 Online].</ref>

===Reagan administration===
In November 1982, President [[Ronald Reagan]] signed a directive regarding congressional requests for information. Reagan wrote that if Congress seeks information potentially subject to executive privilege, executive branch officials should "request the congressional body to hold its request in abeyance" until the president decides whether to invoke it.<ref name=Savage>Savage, Charlie.  [https://www.nytimes.com/2017/06/15/us/politics/executive-privilege-sessions-trump.html  "Explaining Executive Privilege and Sessions's Refusal to Answer Questions"], ''[[The New York Times]]'' (June 15, 2017).</ref><ref>Reagan, Ronald.  [https://www.documentcloud.org/documents/3864882-1982-Reagan-Memo-re-procedures-governing.html "Procedures Governing Responses to Congressional Requests for Information"], The White House (November 4, 1982).</ref>

===George H. W. Bush administration===
Before becoming attorney general in 1991, [[United States Deputy Attorney General|Deputy Attorney General]] [[William P. Barr]] issued guidance in 1989 about responding to congressional requests for confidential executive branch information. He wrote: "Only when the accommodation process fails to resolve a dispute, and a subpoena is issued does it become necessary for the president to consider asserting executive privilege".<ref>Barr, William.  [https://www.justice.gov/file/24236/download "Congressional Requests for Confidential Executive Branch Information"], U.S. Department of Justice (June 19, 1989).</ref><ref name=Savage />

===Clinton administration===
The Clinton administration invoked executive privilege on fourteen occasions.

In 1998, President [[Bill Clinton]] became the first president since Nixon to assert executive privilege and lose in court when a federal judge ruled that Clinton aides could be called to testify in the [[Clinton–Lewinsky scandal]].<ref>Baker, Peter; and Schmidt, Susan. {{cite news|url=https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/starr050698.htm|access-date=2007-03-27|title=President is Denied Executive Privilege | newspaper=The Washington Post | date=July 22, 1998}} ''The Washington Post'', May 6, 1998.</ref>

Later, Clinton exercised a form of negotiated executive privilege when he agreed to testify before the grand jury called by [[United States Office of the Independent Counsel|Independent Counsel]] [[Kenneth Starr]] only after negotiating the terms under which he would appear. Declaring that "absolutely no one is above the law", Starr said such a privilege "must give way" and evidence "must be turned over" to prosecutors if it is relevant to an investigation.

===George W. Bush administration===
The Bush administration invoked executive privilege on six occasions.

President [[George W. Bush]] first asserted executive privilege in December 2001 to deny disclosure of details regarding former attorney general [[Janet Reno]],<ref>{{cite news|url=https://www.nytimes.com/2007/06/29/washington/29bush.html|title=Bush Asserts Executive Privilege on Subpoenas|first=Sheryl Gay|last=Stolberg|newspaper=The New York Times|date=June 29, 2007|access-date=June 3, 2017}}</ref> the scandal involving [[Federal Bureau of Investigation]] (FBI) misuse of organized crime informants [[James J. Bulger]] and [[Stephen Flemmi]], and Justice Department deliberations about President Bill Clinton's fundraising tactics.<ref>{{cite news |url=https://www.nytimes.com/2001/12/14/us/bush-claims-executive-privilege-in-response-to-house-inquiry.html |title=Bush Claims Executive Privilege in Response to House Inquiry |first=Neil A. |last=Lewis |work=The New York Times|date=2001-12-14 |access-date=2007-07-17 |df=mdy-all }}</ref>

Bush invoked executive privilege "in substance" in refusing to disclose the details of [[Vice President of the United States|Vice President]] [[Dick Cheney]]'s meetings with energy executives, which the GAO did not appeal. In a separate Supreme Court decision in 2004, however, Justice [[Anthony Kennedy]] noted, "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked.'" ''[[United States v. Reynolds]]'', 345 U.S. 1, 7 (1953).

Further, on June 28, 2007, Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel [[Harriet Miers]] and former political director [[Sara Taylor]],<ref>{{cite web|url=https://www.nbcnews.com/id/wbna19480518|title=White House refuses to answer subpoenas|date=June 28, 2007|website=NBC News|access-date=June 3, 2017}}</ref> citing that:
<blockquote>
The reason for these distinctions rests upon a bedrock presidential prerogative: for the president to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.
</blockquote>

On July 9, 2007, Bush again invoked executive privilege to block a congressional subpoena requiring the testimonies of Taylor and Miers. Furthermore, [[White House Counsel]] [[Fred F. Fielding]] refused to comply with a deadline set by the chairman of the Senate Judiciary Committee to explain its privilege claim, prove that the president personally invoked it, and provide logs of which documents were being withheld. On July 25, 2007, the House Judiciary Committee voted to cite Miers and [[White House Chief of Staff]] [[Joshua Bolten]] for [[contempt of Congress]].<ref>{{cite news |title=House inches toward constitutional showdown with contempt vote |url=http://www.cnn.com/2007/POLITICS/07/25/house.contempt/index.html |work=Politics |publisher=[[CNN]] |date=July 25, 2007 |access-date=2007-07-25 }}</ref><ref>{{cite press release |title = House Judiciary Reports Contempt Citations to the House of Representatives |publisher = [[U.S. House of Representatives Committee on the Judiciary]] |date = July 25, 2007 |url = http://judiciary.house.gov/newscenter.aspx?A=837 |access-date = 2007-07-26 |url-status = dead |archive-url = https://web.archive.org/web/20070725214703/http://judiciary.house.gov/newscenter.aspx?A=837 |archive-date = July 25, 2007 |df = mdy-all }}</ref>

On July 13, less than a week after claiming executive privilege for Miers and Taylor, Fielding effectively claimed the privilege again, this time concerning documents related to the 2004 death of [[75th Ranger Regiment|Army Ranger]] [[Pat Tillman]]. In a letter to the House Committee on Oversight and Government Reform, Fielding claimed certain papers relating to discussion of the [[friendly fire]] shooting "implicate Executive Branch confidentiality interests" and would therefore not be turned over to the committee.<ref>{{cite news |title=White House Rebuffs Congress on Tillman Papers |url=http://seattletimes.nwsource.com/html/nationworld/2003788310_webtillman13.html |work=Politics |publisher=[[The Seattle Times]] |date=August 1, 2007 |access-date=2008-08-01 |url-status=dead |archive-url=https://web.archive.org/web/20080510231247/http://seattletimes.nwsource.com/html/nationworld/2003788310_webtillman13.html |archive-date=May 10, 2008 |df=mdy-all }}</ref>

On August 1, 2007, Bush invoked the privilege for the fourth time in a little over a month, rejecting a subpoena for [[Karl Rove]]. The subpoena would have required Rove to testify before the [[United States Senate Committee on the Judiciary|Senate Judiciary Committee]] in a probe over fired federal prosecutors. In a letter to Senate Judiciary chairman [[Patrick Leahy]], Fielding claimed that "Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity."<ref>{{cite news |title=Bush won't let aide Rove testify to Congress|url=https://www.reuters.com/article/topNews/idUSN0141867220070801 |work=Politics |publisher=[[Reuters]] |date=August 1, 2007 |access-date=2008-08-01 }}</ref>

Leahy claimed that President Bush was not involved in the decision to terminate the service of U.S. attorneys. Furthermore, he asserted that the president's executive privilege claims to protect Bolten and Rove were illegal. The senator demanded that Bolten, Rove, Sara Taylor, and [[J. Scott Jennings]] comply "immediately" with their subpoenas. This development paved the way for a Senate panel vote on whether to advance the citations to the full Senate. "It is obvious that the reasons given for these firings were contrived as part of a cover-up and that the stonewalling by the White House is part and parcel of that same effort", Leahy concluded.<ref>{{cite news|title=Leahy: Bush not involved in attorney firings |url=https://www.nbcnews.com/id/wbna22025702 |publisher=[[Associated Press]] |via=NBS News |date=2007-11-29 |access-date=2008-11-30 }}</ref><ref>{{cite news|title=Leahy: Rove, others must comply with subpoenas |url=http://www.cnn.com/2007/POLITICS/11/29/senate.prosecutors.ap/index.html |archive-url=https://web.archive.org/web/20071201042328/http://www.cnn.com/2007/POLITICS/11/29/senate.prosecutors.ap/index.html |url-status=dead |archive-date=2007-12-01 |publisher=[[CNN]] |access-date=2008-11-30 }}</ref><ref>{{cite news |title=Leahy again orders Karl Rove to appear |url=http://www.benningtonbanner.com/headlines/ci_7597568 |publisher=[[Bennington Banner]] |access-date=2008-11-30 |archive-date=February 10, 2009 |archive-url=https://web.archive.org/web/20090210191624/http://www.benningtonbanner.com/headlines/ci_7597568 |url-status=dead }}</ref><ref>{{cite news |title=Leahy again demands U.S. attorney info|url=http://www.earthtimes.org/articles/show/150510.html |publisher=Earth Times |access-date=2008-11-30 }}</ref>

{{as of|2008|July|17}}, Rove still claimed executive privilege to avoid a congressional subpoena. Rove's lawyer wrote that his client is "constitutionally immune from compelled congressional testimony."<ref>{{cite news |title=Rove ignores committee's subpoena, refuses to testify|url=http://www.cnn.com/2008/POLITICS/07/10/rove.subpoena/index.html |publisher=[[CNN]] |access-date=2008-07-10 | date=July 10, 2008}}</ref>

===Obama administration===
On June 20, 2012, President [[Barack Obama]] asserted executive privilege to withhold certain [[United States Department of Justice|Department of Justice]] documents related to the [[Operation Fast and Furious]] controversy ahead of a [[United States House Committee on Oversight and Government Reform]] vote to hold Attorney General [[Eric Holder]] in [[contempt of Congress]] for refusing to produce the documents.<ref>{{cite news|last=Jackson|first=David|title=Obama team: 'Fast and Furious' documents are privileged|url=http://content.usatoday.com/communities/theoval/post/2012/06/obama-team-fast-and-furious-documents-are-privileged/1|publisher=USA Today|access-date=20 June 2012|date=June 20, 2012}}</ref><ref name="Savage 2012">{{cite web | last=Savage | first=Charlie | title=House Recommends Contempt for Holder | website=The New York Times | date=June 8, 2012 | url=https://www.nytimes.com/2012/06/21/us/obama-claims-executive-privilege-in-gun-case.html | access-date=June 6, 2017}}</ref> Later the same day, the House Committee voted 23–17 along party lines to hold Holder in contempt of Congress over not releasing the documents.<ref>{{cite news|last=Madhani and Davis|first=Aamer and Susan|title=House panel votes to cite Holder for contempt of Congress|url=https://www.usatoday.com/news/washington/story/2012-06-20/holder-contempt-House-vote/55717644/1|publisher=USA Today|access-date=20 June 2012|date=June 20, 2012}}</ref>

====House investigation of the SEC====
Leaders of the [[U.S. Securities and Exchange Commission]] (SEC) testified on February 4, 2009, before the [[United States House Committee on Financial Services]] subcommittee. The subject of the hearings was why the SEC had failed to act when [[Harry Markopolos]], a private fraud investigator from Boston, alerted the SEC, detailing his persistent and unsuccessful efforts to get the SEC to investigate [[Bernard Madoff]] beginning in 1999.<ref name=henriques>{{Cite news
  | last = Henriques
  | first = Diana
  | title = Anger and Drama at a House Hearing on Madoff
  | newspaper = [[The New York Times]]
  | date = February 4, 2009 
  | url = https://www.nytimes.com/2009/02/05/business/05madoff.html}}</ref> One official claimed executive privilege in declining to answer some questions.<ref name=jamieson>{{Cite news
  | last = Jamieson  
  | first = Dan 
  | title = SEC officials dodge questions; one claims privilege 
  | newspaper = InvestmentNews
  | date = February 4, 2009
  | url =http://www.investmentnews.com/apps/pbcs.dll/article?AID=/20090204/REG/902049977 }}</ref><ref name=Ahrens>{{Cite news
  | last =  Ahrens
  | first =  Frank 
  | title = Lawmakers Sink Teeth Into the SEC: Agency Mocked for Not Catching Madoff
  | newspaper = [[The Washington Post]]
  | pages = D01 
  | date = February 5, 2009
  | url = https://www.washingtonpost.com/wp-dyn/content/article/2009/02/04/AR2009020403399.html}}</ref>

===Trump administration===
While investigating claims of [[Russian interference in the 2016 United States elections|Russian interference in the 2016 presidential election]], the [[Senate Intelligence Committee]] subpoenaed former FBI Director [[James Comey]] to testify. Comey [[Dismissal of James Comey|was fired]] several weeks before being subpoenaed but had appeared before the committee once before in March while still serving as director. Less than a week before the scheduled hearing, it was reported that President Trump was considering invoking executive privilege to prevent Comey's testimony.<ref>{{cite web|url=http://www.cnn.com/2017/06/02/politics/trump-james-comey-executive-privilege/index.html|website=CNN|access-date=June 3, 2017|title=Can Trump block Comey from testifying? White House could try to invoke executive privilege &#124; CNN Politics|date=June 2, 2017}}</ref><ref>{{cite news|url=https://www.bloomberg.com/politics/articles/2017-06-02/trump-reviewing-whether-to-block-comey-testimony-spokesman-says|title=Trump Reviewing Whether to Block Comey Testimony to Senate|newspaper=Bloomberg |date=June 2, 2017|access-date=June 3, 2017|via=Bloomberg.com}}</ref> According to attorney Page Pate, it seemed unlikely that executive privilege would be applicable, as Trump had publicly spoken about the encounters in question multiple times.<ref>{{cite news|last1=Pate|first1=Page|title=Trump can't stop Comey with executive privilege|url=http://www.cnn.com/2017/06/03/opinions/trump-cant-stop-comey-testimony-pate/index.html|access-date=June 3, 2017|publisher=[[CNN]]|date=June 2, 2017}}</ref>

[[Sarah Huckabee Sanders]], a White House spokesperson, released a statement on June 5: "The president's power to assert executive privilege is very well-established. However, to facilitate a swift and thorough examination of the facts sought by the Senate Intelligence Committee, President Trump will not assert executive privilege regarding James Comey's scheduled testimony."<ref>{{Cite news|url=http://www.politico.com/story/2017/06/05/comey-trump-239146|title=White House: Trump will not assert executive privilege to block Comey's testimony|work=POLITICO|access-date=2017-06-05}}</ref>

On May 8, 2019, Trump asserted executive privilege regarding the entire [[Mueller report]] at the attorney general's request. According to ''[[The New York Times]]'', this was Trump's "first use of the secrecy powers as president".<ref>{{cite news |title=House Panel Approves Contempt for Barr After Trump Claims Privilege Over Full Mueller Report |work=The New York Times |date=May 8, 2019 |url=https://www.nytimes.com/2019/05/08/us/politics/congress-contempt-barr.html }}</ref>

On June 12, 2019, Trump asserted executive privilege over documents related to adding a citizenship question to the 2020 census. This was in response to a subpoena from the House of Representatives leading up to their impending vote over whether to hold [[Wilbur Ross]] and Attorney General William Barr in contempt of Congress over the census question.<ref>{{Cite news|url=https://www.reuters.com/article/us-usa-trump-congress-idUSKCN1TD1VC|title=Ahead of contempt vote, Trump shields census documents from Congress|date=2019-06-12|work=Reuters|access-date=2019-06-12|language=en}}</ref>

Trump invoked the privilege against the House Judiciary Committee: ''[[In re: Don McGahn]]'' then-U.S. District Judge [[Ketanji Brown Jackson]] ruled against the President, but an appellate court overruled Jackson.<ref>[https://www.nytimes.com/2020/02/28/us/mcgahn-subpoena-trump.html?emc=edit_na_20200228&ref=cta&nl=breaking-news&campaign_id=60&instance_id=0&segment_id=21738&user_id=1793a88377b99809a83538d1c9275283&regi_id=32291497 Charlie Savage, ''Court Rules Congress Cannot Sue to Force Executive Branch Officials to Testify''], New York Times, 28 February 2020.</ref>

Congress's ability to subpoena the president's tax returns was the subject of the federal court case ''[[Trump v. Mazars USA, LLP]]''. However, the Supreme Court ruled in 2020 that this case raised questions of [[separation of powers]] rather than executive privilege. It said Congress needed a legislative reason to request the documents rather than conducting a criminal investigation, which is a power of the executive branch.<ref>{{Cite web|url=https://www.npr.org/2020/07/09/889378080/trump-not-immune-from-releasing-tax-returns-supreme-court-rules|title=Trump Not 'Immune' From Releasing Tax Returns, Supreme Court Rules|website=NPR.org}}</ref>

=== Biden administration ===
On May 16th, 2024, Biden asserted executive privilege over tapes of interviews from the special counsel report into his [[Joe Biden classified documents incident|mishandling of classified documents]]. <ref>{{Cite web |last=Jansen |first=Bart |title=Biden invokes executive privilege to shield Robert Hur interview tapes from House |url=https://www.usatoday.com/story/news/politics/elections/2024/05/16/attorney-general-merrick-garland-contempt-house-republicans/73710016007/ |access-date=2024-05-16 |website=USA TODAY |language=en-US}}</ref> This came as Republicans in the House of Representatives were considering a contempt motion for Attorney General [[Merrick Garland]], who had refused a congressional subpoena to turn over the tapes.

==See also==
*[[State secrets privilege]]
*[[Attorney–client privilege]]
*[[Parliamentary privilege]]

==References==
{{Reflist|30em}}

==Further reading==
*{{cite journal |first=Dawn E. |last=Johnsen |author-link=Dawn Johnsen |title=Executive Privilege Since ''United States v. Nixon'': Issues of Motivation and Accommodation |journal=[[Minnesota Law Review]] |volume=83 |issue=5 |year=1999 |pages=1127–1141 |ssrn=3385755 }}
*{{cite book |first=Mark J. |last=Rozell |author-link=Mark J. Rozell |title=Executive Privilege : Presidential Power, Secrecy, and Accountability |location=Lawrence |publisher=University Press of Kansas |edition=3rd, rev. and updated |year=2010 |isbn=978-0-7006-1712-8 }}

{{US Constitution}}
{{Authority control}}

[[Category:Presidency of the United States]]
[[Category:Legal doctrines and principles]]
[[Category:United States executive privilege case law|*]]
[[Category:Privileged communication]]