13.2 Executive privilege and immunity

Executive privilege empowers presidents to withhold information, safeguarding confidential communications and national security. This power, rooted in separation of powers and Article II, allows presidents to fulfill their duties effectively, but it's not absolute.

The Supreme Court has set limits on executive privilege, rejecting claims of absolute immunity. Cases like United States v. Nixon and Trump v. Vance have established balancing tests, weighing the need for confidentiality against other interests like judicial proceedings and congressional oversight.

Constitutional Foundations and Limitations

Concepts of executive privilege

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• Executive Privilege empowers President to withhold information from other branches safeguarding confidential communications with advisors and protecting deliberative process and national security information (Cabinet meetings, National Security Council discussions)
• Executive Immunity shields President from civil lawsuits for official actions granting temporary immunity from criminal prosecution while in office and extending to certain high-ranking executive officials (Secretary of State, Attorney General)

Constitutional basis for executive powers

• Separation of powers doctrine ensures independence of executive branch preventing encroachment by legislative and judicial branches (veto power, appointment authority)
• Article II of the Constitution vests executive power in the President implying need for confidential communications to fulfill duties (Commander-in-Chief role, foreign policy decisions)
• Historical precedent supports executive privilege with George Washington refusing to provide documents to Congress and Thomas Jefferson asserting privilege during Aaron Burr trial

Supreme Court limitations on executives

• United States v. Nixon (1974) rejected absolute executive privilege establishing balancing test between privilege and judicial need requiring in camera review of subpoenaed materials (Watergate tapes)
• Clinton v. Jones (1997) ruled presidents can be subject to civil lawsuits for unofficial acts allowing temporary stay of proceedings if they interfere with official duties (Paula Jones lawsuit)
• Trump v. Vance (2020) held presidents are not absolutely immune from state criminal subpoenas rejecting claim of heightened standard for subpoenas targeting presidents (New York tax returns case)

Executive privilege vs congressional oversight

• Congressional investigative powers derive from Constitution's implied powers essential for legislative and oversight functions (committee hearings, subpoenas)
• Executive branch's need for confidentiality protects national security information and ensures candid advice from advisors (classified intelligence reports, policy discussions)
• Negotiation and accommodation process encourages branches to resolve disputes without judicial intervention involving compromise and alternative information-sharing methods (redacted documents, closed-door testimony)
• Judicial role in resolving conflicts may involve court intervention when branches reach impasse applying balancing test to weigh competing interests (United States v. AT&T, Senate Select Committee v. Nixon)