[1] 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, derived from the supremacy of each branch in its area of constitutional activity.
[4][6] 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.
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 Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president.
At that point, the Truman Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems.
During the Army–McCarthy hearings in 1954, 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."
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 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 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.
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.
Political scientist Mark J. Rozell concludes that Ford's: In November 1982, President Ronald Reagan signed a directive regarding congressional requests for information.
President George W. Bush first asserted executive privilege in December 2001 to deny disclosure of details regarding former attorney general Janet Reno,[16] 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.
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.'"
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,[18] citing that: 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.
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.
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.
[32][33] While investigating claims of Russian interference in the 2016 presidential election, the Senate Intelligence Committee subpoenaed former FBI Director James Comey to testify.
[36] 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.
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.
[42] 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.