WHAT ARE THE LIMITS OF EXECUTIVE PRIVILEGE?
UNITED STATES VS NIXON (1974)
The President’s power to keep certain communications with his advisors confidential is called executive privilege. This power is based on the idea that members of the executive branch should be able to advise the President without worrying that their opinions will be revealed to other branches of government or to the public
The Facts The Issue The Decision
• Congressional investigation revealed that President Nixon and his aides may have committed illegal acts
• Taped Oval Office conservations between Nixon and his aides were sought as evidence
• Nixon refused to surrender the taped to the Department of Justice • Nixon argued that executive privilege gave him the absolute right to withhold the tapes from the Department of Justice Supreme Court ruled that executive privilege has limits. They said the executive privilege could not protect the President from the judicial process. Nixon must surrender the taped to prosecutors
WHY IT MATTERS
Although not specifically granted by the Constitution, Presidents have long assumed that executive priviledge is implied by the constitutional separation of powers. United States vs Nixon was the test case that allowed the Supreme Court to define executive privilege and to set limits on its use.
In his written opinion, Chief Justice Burger recognized that there is a need for confidentiality in the executive branch, particularly when “military, diplomatic or sensitive national security secrets” must be protected. Under those conditions, the President has the absolute right to keep communications confidential. However, communications between the President and his advisors often concern policy that has nothing to do with national security. In those cases, Burger said, executive privilege is limited. A Judge can decide that there is overwhelming government interest in obtaining the President’s privileged communications. The due process of law in a criminal case is one example of overwhelming government interest.
A few days after the decision in United States v. Nixon, President Nixon resigned from office. The Court’s ruling had proved that the President is not above the law.
CONNECT TO YOUR WORLD
Consider the limits of executive pledge outlined in United States vs. Nixon. During their respective terms in office, recent Presidents Bill Clinton and George W. Bush have applied executive privilege in controversial situations. Research one example and the n write a paragraph either defending or arguing against this use of executive privilege.