Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments
"Presidential claims of a right to preserve the confidentiality of information and
documents in the face of legislative demands have figured prominently, though
intermittently, in executive-congressional relations since at least 1792. Few such
interbranch disputes over access to information have reached the courts for
substantive resolution, the vast majority achieving resolution through political
negotiation and accommodation. In fact, it was not until the Watergate-related
lawsuits in the 1970’s seeking access to President Nixon’s tapes that the existence
of a presidential confidentiality privilege was judicially established as a necessary
derivative of the President’s status in our constitutional scheme of separated powers.Of the eight court decisions involving interbranch or private information accessdisputes, three have involved Congress and the Executive but only one of
these resulted in a decision on the merits. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege. Under those precedents, the privilege, which is constitutionally rooted, could be invoked by the President when asked to produce documents or other materials or information that reflect presidential decisionmaking and deliberations that he believes should remain confidential. If the President does so, the materials become presumptively privileged.The privilege, however, is qualified, not absolute, and can be overcome by an adequate showing of need..."