Prior to becoming attorney general in 1991, Deputy Attorney General William P. Barr issued guidelines in 1989 to respond to requests for confidential congressional information from the executive branch. He wrote, “Only when the placement process cannot resolve a dispute and a subpoena is issued does it become necessary for the president to consider asserting executive privilege.” [14] [12] One president who significantly changed the use of executive privilege was Grover Cleveland, who “almost single-handedly” increased the power of the presidency by “using his executive privilege by refusing to hand over ministerial records to Congress in the fight for presidential appointments,” wrote Henry F. Graff, professor emeritus of history at Columbia University. The idea dates back to President George Washington, who claimed it in 1792 when Congress asked him to hand over documents related to an unsuccessful military operation against Native Americans, according to Rozell`s account of the history of executive privilege for the Miller Center at the University of Virginia. Thomas Jefferson once wrote that Washington, after consulting with members of his cabinet, believed “that the executive branch should release the documents that the public good would permit, and reject those whose disclosure would harm the public.” Washington also asserted this when Congress requested documents related to the Jay Treaty negotiations with England, arguing that “the nature of foreign negotiations requires caution and that their success must often depend on secrecy.” In general, presidents invoke executive privilege in matters of national security, military, and foreign affairs, for example, to protect the names of spies and informants. In 1997, Präs. Bill Clinton over executive privilege in a civil lawsuit in which Paula Jones, a former employee of the state of Arkansas, while Clinton was the governor of that state, alleged sexual harassment by Clinton. Lawyers representing Clinton argued that the president should be immune from civil lawsuits while in his service.

The Supreme Court unanimously rejected Clinton`s request. The following year, in a related case, the court also rejected a request for Clinton`s privileges in connection with conversations he had in the Oval Office with White House advisers (who received federal compensation) about the Jones case. The court relied heavily on precedent in the Nixon case. Following Nixon`s extensive use of executive privilege to block investigations into his actions, Ford was conscientious in downplaying its use. This, however, complicated his efforts to keep congressional investigations under control. Political scientist Mark J. Rozell concludes that Ford: On July 9, 2007, Bush again invoked executive privilege to block a congressional subpoena that required Taylor and Miers to testify. In addition, White House counsel Fred F. Fielding refused to meet a deadline set by the chairman of the Senate Judiciary Committee to explain his claim of privilege, prove that the president personally invoked it, and provide minutes of the retained documents.

On the 25th. In July 2007, the House Judiciary Committee voted to summon Miers and White House Chief of Staff Joshua Bolten for contempt of Congress. [19] [20] White House spokeswoman Sarah Huckabee Sanders issued a statement on June 5: “The president`s power to assert executive privilege is very well established. However, to allow for a prompt and thorough investigation into the facts sought by the Senate Intelligence Committee, President Trump will not invoke executive privilege over James Comey`s planned testimony. [37] Although the President is facing criminal prosecution, the question of the limits of this process remains. The court recognized several limitations on a prosecutor`s ability to obtain evidence from the president through the use of a criminal subpoena.21FootnoteSee id. First, the Chair, like any citizen, may challenge a particular subpoena on the basis that it was issued in bad faith or was excessively broad.22FootnoteId. Second, the timing and scope of criminal investigations must be influenced by the nature of the President`s office, para. B example by granting respect in the planning of procedures to avoid significant interference in the official responsibilities of the President.23FootnoteId. Third, the President may file constitutional challenges specific to a subpoena, arguing that complying with a particular subpoena would significantly affect his efforts to fulfill an official duty.24FootnoteId. at 2431–32.

As the Court first did in United States v. Nixon, a particularly notable constitutional challenge that a president can file against a criminal subpoena, is a claim of executive privilege in certain presidential communications.25Footnote418 U.S. 683, 708 (1974). Once executive privilege is asserted, equal branches of government are put on a collision course. The judiciary is obliged to reconcile the need for information in judicial proceedings with the prerogatives of the executive under article II. This inquiry puts the courts in an uncomfortable position to assess the executive`s requirements for confidentiality and autonomy, and highlights difficult issues of separation of powers and checks and balances. These “possibilities of constitutional confrontation between the two branches” are likely to be avoided as much as possible. United States vs. Nixon, above, at 692. [10] However, the specific term “executive privilege” would have emerged more often in the 20th century. President Dwight Eisenhower has invoked executive privilege more than 40 times.

“Eisenhower took a very strong stance, especially during the McCarthy hearings,” Rozell told TIME in 2007. When Senator Joseph McCarthy demanded in 1954 that White House officials testify about so-called communists, “Eisenhower replied that any man who testifies before Congress on the advice he has given me will not work for me at nightfall.” The president`s communications, according to the Nixon court, have an alleged privilege. This privilege is fundamental to the functioning of government and is inextricably rooted in the separation of powers under the Constitution. The functioning of government is enhanced by the protection afforded to communication between senior officials and those who advise and assist them in the performance of their duties. .