Executive Privilege Definition and Legal Meaning

On this page, you'll find the legal definition and meaning of Executive Privilege, written in plain English, along with examples of how it is used.

What is Executive Privilege?

n. a claim by the President or another high official of the executive branch that he/she need not answer a request (including a subpena issued by a court or Congress) for confidential government or personal communications, on the ground that such revelations would hamper effective governmental operations and decision-making. The rationale is that such a demand would violate the principle of separation of powers among the executive, legislative and judicial branches. If there is a potential criminal charge, executive privilege will be denied, as Richard Nixon discovered when he attempted to use executive privilege to deny Congress, the courts and the Department of Justice access to tapes and documents in the Watergate scandal (1973-1974).

History and Meaning of Executive Privilege

Executive privilege is a doctrine that has existed since the earliest days of the American presidency. It is the idea that the president and other high-ranking officials within the executive branch of the United States government have the right to keep certain communications and documents confidential, even if they are requested by Congress or the courts. The rationale behind this doctrine is that it allows for open and frank discussions within the executive branch, which is necessary for effective governance. However, it can also be abused to hide illegal or unethical actions.

Examples of Executive Privilege

  1. In 1973, President Richard Nixon attempted to use executive privilege to block Congress, the courts, and the Department of Justice from accessing tapes and documents related to the Watergate scandal. Ultimately, the Supreme Court ruled that executive privilege could not be used to protect documents that were relevant to an ongoing criminal investigation.

  2. During the Iran-Contra affair in the 1980s, President Ronald Reagan tried to use executive privilege to prevent members of his administration from testifying before Congress. Ultimately, Reagan backed down and allowed his aides to testify.

  3. In 2012, President Barack Obama invoked executive privilege to withhold documents related to the "Fast and Furious" scandal from Congress. This led to a contempt of Congress citation against Attorney General Eric Holder.

Legal Terms Similar to Executive Privilege

  1. Attorney-client privilege: Similar to executive privilege, this is the right of a client to refuse to disclose confidential communications with their attorney.

  2. Deliberative process privilege: This is a narrower form of executive privilege that protects communications within the executive branch related to policy-making.

  3. State secrets privilege: This is a privilege that allows the government to resist disclosing information in legal proceedings if that information would harm national security.