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Executive privilege is a concept used by the US President to avoid disclosing information that could compromise the executive branch. It is not constitutionally based, but justified by the separation of powers clause. The term was coined by President Eisenhower, and it is also used to protect key members of the administration. It has been invoked by presidential administrations of all stripes and is often fought over by the legislative and judicial branches. Some believe it is appropriate, while others think it is used to avoid exposure of illegal activity. The matter is unlikely to be resolved.
Executive privilege is a concept invoked by the President of the United States to avoid disclosing information that the President believes could compromise the functioning of the executive branch of government. In fact, there is no constitutional basis for this privilege, and some presidents have lost their attempts to invoke it, including President George Washington, who first attempted to use the 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 were forced to reveal some sensitive information by the judiciary or the legislature, it would be a violation of the separation of powers. In addition, executive privilege should also protect national security and the presidential administration itself by ensuring that executive officials feel free to communicate with each other and with the president on important matters.
The term “executive privilege” was coined by President Dwight Eisenhower, but he was not the first or the last to invoke this concept to evade testimony. In addition to the president, this privilege is also purported 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 cover of executive immunity. In cases where presidents and their administrations invoke it to stand up to mandates and avoid handing over subpoenaed materials, they may face a battle.
In 1974, President Nixon attempted to invoke executive privilege and failed. In addition to failing, he also brought the issue to the forefront of the American mind and Congress, leading to the passage of a law that was designed to more clearly define and limit this privilege. The concept continues to be invoked by presidential administrations of all stripes, and continues to be fought over by the legislative and judicial branches of the US government.
Some people feel that executive privilege is appropriate and that without it, the executive branch may be too exposed. Others believe it is sometimes invoked to avoid exposure of illegal activity in the White House and that presidents and other executive officials should be required to testify, submit to warrants, and comply with subpoenas. Like many legal disputes in the United States, the matter will likely never be satisfactorily resolved, much to the delight of the lawyers and judges who are paid to litigate such matters.
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