Executive privilege and the Supreme Court

DESCRIPTION: The inherent power of the president to withhold information from Congress and the courts or to refuse to testify in a legislative or judicial proceeding.

SIGNIFICANCE: The Supreme Court recognized a constitutionally based limited privilege grounded in the doctrine of the separation of powers.

Presidential discretion to refuse to appear before a legislative or judicial proceeding is sometimes considered a separate category of executive discretion called executive privilege. According to William Safire, the phrase “executive privilege” was first used in the 1950s, but the concept dates back to the practice of the royal prerogative, and the privileges of Parliament.

Origins and Early Uses

Executive privilege is also considered an implied power under Article II of the US Constitution. George Washington claimed the authority to withhold information from Congress during a 1792 congressional investigation into the St. Clair Affair, in which General Arthur St. Clair, governor of the Northwest Territory, suffered a devastating defeat when ambushed by a Native American confederacy in 1791. Although Washington gave the House of Representatives the documents it requested regarding the St. Clair expedition, the president argued that if he deemed it in the national interest, he could withhold the information.

Because of its opaque historical roots, disagreement exists regarding the meaning and scope of executive privilege, its application in the US government, and its constitutional basis. As a result of these disagreements, in the post–World War II period, federal courts frequently were asked to decide cases involving executive privilege. Constitutional scholars such as Raoul Berger represent one side of the debate that argues that executive privilege is a myth, not a constitutional reality. Proponents of a broad interpretation of executive privilege tend to be presidents and executive officials who argue for it in a particular political context rather than on principle. The debate over its application has been colored by the specific controversies that engendered its use. For example, President Dwight D. Eisenhower used executive privilege to prevent Defense Department officials from revealing information sought by the House of Representatives during the Army-Joe McCarthy hearings in 1954.

Only a president can invoke executive privilege because, in the Constitution, all executive power rests in that office. Executive privilege is justified by the president’s need to receive frank advice from advisers, to protect national security, and to check and balance the subpoena power of Congress and the courts. In each of these cases, the justification for keeping information within the executive branch is national interest or the public good, often in combination with national security. Although executive privilege has no textual mooring in the Constitution, it emanates from the principle of the separation of powers.

A Limited Privilege

The Supreme Court set limits on executive privilege in the landmark precedent United States v. Nixon (1974), a ruling that helped precipitate the resignation of President Richard M. Nixon. In an 8-0 decision written by Chief Justice Warren E. Burger, the Court ruled that the president may not give privileged status to information that is instrumental to a criminal investigation. Nixon’s use of executive privilege regarding the Watergate tapes was considered inconsistent with the idea that this privilege exists to serve the national interest, not to protect the president from criminal prosecution or impeachment.

Although post-World War II presidents have tended to argue for an absolute privilege, the federal courts have rejected the idea based largely on the legitimate needs of the other branches of government to acquire information from the executive. The Court has accepted a constitutionally based limited privilege. The closest the Court came to recognizing broad official immunity for executive officers was in Spalding v. Vilas (1896) and Barr v. Matteo (1959). The Court’s position, however, was reshaped by the Watergate affair, and the effects of the United States v. Nixon decision were apparent in Butz v. Economou (1978). In the Butz decision, the majority, represented by Justice Byron R. White, denied absolute immunity based in part on its inconsistency with the rule of law.

In the 1990s, the federal courts rejected specific executive-privilege claims made during President Bill Clinton’s Lewinsky-related investigations, finding that the need for evidence outweighed the confidentiality claim. During the investigation involving the president and Monica Lewinsky by independent counsel Kenneth Starr, the Clinton administration attempted to expand the meaning and application of executive privilege to new areas of the president’s life. Two such areas were the attempt to extend executive privilege to the president and his attorneys and to the Secret Service agents who protect the president. US District Judge Norma Holloway Johnson and a three-judge appeals court panel rejected Clinton’s claims of executive privilege in the Lewinsky investigation. Johnson ruled that White House attorney Bruce Lindsey and White House aide Sidney Blumenthal must testify before a federal grand jury. In the Bruce Lindsey matter, the Supreme Court denied certiorari before judgment, and the D.C. Circuit later ruled against the claimed privilege on July 27, 1998

In a related matter, the Clinton administration argued that Secret Service agents are covered by “protective-function privilege” because requiring them to testify about the president before a federal grand jury or to be deposed by the independent counsel’s office is incompatible with their duty to protect the president. Acceptance of this claim would have significantly expanded presidential confidentiality protections. However, the Court also refused to hear this case, letting stand the lower court’s decision to deny the president’s claim of a protective-function privilege.

Donald Trump and Executive Privilege

Perhaps no other United States President has invoked the right to executive privilege more than President Donald Trump, who served as the forty-fifth and forty-seventh president. These actions stem from two impeachment trials while serving as the president in his first term and a series of investigations that followed into his post-presidency after his first term. In some cases, former administration officials have been able to invoke executive privilege in limiting their testimony to US congressional and law enforcement officials. In other instances, US courts have been unwilling to allow the former president to bar testimony from former members of his government. An important case relates to the potential testimony of former vice president Michael Pence over communications he may have had with Trump concerning the January 6, 2021, attack on the US Capitol. In February 2023, Jack Smith, the special counsel investigating Trump’s efforts to overturn the 2020 US presidential election, served former Vice President Michael Pence with a subpoena to provide testimony over the incident. Both Trump and Pence challenged the subpoena, but on different grounds. Trump wished to maintain the confidentiality of these communications, while Pence sought to invoke constitutional “Speech and Debate” privileges. These protections apply to certain legislative acts and do not broadly shield all government officials from prosecution. A United States District judge ordered Pence to comply with the subpoena, and on April 5, 2023, Pence announced he would not appeal the decision. In 2024, the Supreme Court ruled in Trump v. United States that a former president has immunity from criminal prosecution for actions within the former president’s exclusive constitutional authority and presumptive immunity for other official acts, but no immunity for unofficial acts.

Bibliography

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Berger, Raoul. Executive Privilege: A Constitutional Myth. Harvard University Press, 1974.

Fisher, Louis. Constitutional Conflicts Between Congress and the President. 4th ed. University Press of Kansas, 1997.

In re: Bruce R. Lindsey (Grand Jury Testimony). United States Court of Appeals for the District of Columbia Circuit, 26 June 1998, caselaw.findlaw.com/court/us-dc-circuit/1152540. Accessed 8 Apr. 2026.

McElvein, Elizabeth, and Benajim Wittes. “Trump Loses Big on Executive Privilege.” Lawfare, 20 Jan. 2022, www.lawfareblog.com/trump-loses-big-executive-privilege. Accessed 8 Apr. 2026.

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Sullivan, Becky. “The Pence Subpoena Could Set Up a Showdown Over Executive Privilege.” NPR, 11 Feb. 2023, www.npr.org/2023/02/11/1156205144/mike-pence-subpoena-executive-privilege. Accessed 8 Apr. 2026.

“Trump v. United States.” United States Supreme Court, 1 July 2024, www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf. Accessed 8 Apr. 2026.

United States, Supreme Court. “Opinions of the Court – 2024.” Supreme Court of the United States, 2024, www.supremecourt.gov/opinions/slipopinion/24. Accessed 8 Apr. 2026.

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