Executive Privilege

Executive privilege refers to the President's right to withhold certain information from Congress and the courts, even in the face of a subpoena. It is a conditional privilege, meaning it can be overridden in some circumstances, such as when the President is the target of a criminal investigation. President Nixon famously lost his 1974 struggle in the U.S. Supreme Court to keep the Watergate tapes private.

The courts are typically deferential to the privilege, presuming that it holds unless someone can prove an overwhelming interest in obtaining the information. Executive privilege usually protects sensitive information such as national security issues, and private White House deliberations between the President and his staff.  

When presidential aides decline to appear before Congress, Congress can issue a subpoena legally requiring them to testify. The president can refuse to allow his aides to testify by formally asserting executive privilege. But the power of executive privilege is not absolute: Congress can vote to hold aides who refuse to testify in contempt and refer the case to court for prosecution.

Legal controversy arises because nowhere does the Constitution mention the term or the concept of executive privilege. Most executive privilege standoffs between the White House and Congress end in a compromise because the courts are reluctant to referee what they see as political disputes between the other two branches of government.

In 2007, President Bush chose to invoke executive privilege when his aides were called to testify at hearings over the firing of nine U.S. attorneys.  The White House said that President Bush did not decide, personally, to replace the U.S. attorneys and many scholars contend that the privilege applies only to communications culminating in the president's personal decisions.

President Bush also cited executive privilege in refusing to allow his chief of staff, Joshua Bolton, and former counsel, Harriet Miers, to testify before Congress on the firings of the federal prosecutors. President Bush also ordered White House adviser Karl Rove and a senior political aide to refuse to testify before the Senate on the firings of nine U.S. attorneys on grounds of executive privilege.

More recently, the Bush White House asserted executive privilege in order to withhold documents from a congressional investigation into whether it pressured the Environmental Protection Agency to weaken decisions on smog and greenhouse gases.