Executive Privilege in Communications
From Watergate to Spygate, (presidential) executive privilege in communications has been at the heart of many major news stories. Iran-Contra, Plamegate, and Hillary Clinton’s email scandal are a few other famous examples of headline news items where the executive branch’s right to confidential communications has been at issue. But just what is this presidential privilege? News coverage typically takes an understanding of the issue for granted without going into details. Here’s a closer look at what presidential communications privilege means, how it has applied to some famous cases, and how the exercise of this privilege in today’s world depends on secure communications technology.
What Is Executive Privilege?
Executive or presidential privilege is a subcategory of a broader group of Presidential rights that are known as executive privilege.(1) Executive privilege refers to the right of the President of the United States and the President’s immediate advisors not to comply with subpoenas and other solicitations for information from the legislative or judicial branch. The President enjoys executive privilege in four distinct areas:
- National security privilege: This covers records involving the President’s exercise of his authority as commander in chief of the military or his authority to make treaties with the advice and consent of the Senate, including diplomatic records, military records, and records of state secrets
- Deliberative process privilege: This pertains to records involved in pre-decision discussions where the President is seeking consultation on executive decisions
- Attorney-client privilege: The President is entitled to the same attorney-client privilege as private parties
- Executive communications privilege: This protects records of communications by the President and by his immediate advisors in the Executive Office of the President of the United States (EOP), which includes agencies such as the White House Office and the National Security Council.
Executive communications privilege is rooted in the U.S. Constitution’s separation of powers, which makes the executive branch coequal to other branches of government and supreme within its own area of authority. The privilege is designed to ensure that the President and his advisors feel free to speak candidly when gathering information and making decisions. Once invoked, the privilege extends to records in their entirety, including pre-deliberative, final, and post-decisional documents, encompassing all factual matters contained in the communication.
The executive privilege does not apply to all communications by the President’s advisors, but only those authored or initiated and received by advisors immediately responsible for advising the President on the matter in question. The privilege also does not protect evidence required in a criminal case or records that are required for the other co-equal branches of government to exercise their authority, such as the authority of Congress to legislate and conduct oversight of the executive branch.
Famous Examples of Executive Privilege in Communications
Executive privilege and presidential communications privilege have figured into many famous historic and recent cases:
- George Washington and the Jay Treaty: George Washington set the precedent for executive privilege in 1796 when he refused to provide Congress with records pertaining to an unpopular peace treaty negotiated by Chief Justice John Jay with Great Britain. Arguing that the Constitution only authorized the Senate to provide advice and consent on treaties, not Congress, Washington provided the documents to the Senate but not to Congress.
- Thomas Jefferson and the Aaron Burr Trial: Thomas Jefferson attempted to invoke executive privilege in 1807 when former Vice President Burr was on trial for treason and asked the court to subpoena Jefferson to testify or provide private letters discussing Burr. Chief Justice John Marshall ruled that the presidential privilege did not constitute an exception to Burr’s rights under the Sixth Amendment to know what evidence was being used against him, and Jefferson ended up providing select documents, but refused to testify.
- Andrew Jackson and the Bank War: Viewing a national bank as unconstitutional, Jackson ordered the Secretary of the Treasury to redistribute the funds of the Bank of the United States to state banks, prompting Senator Henry Clay to demand that Jackson produce documents of his conversations with his cabinet about the matter. Jackson regarded this as partisan harassment without a constitutional basis, and he refused to comply. The Senate censured him, which Jackson also regarded as unconstitutional, and ignored, ultimately getting his way on bank policy.
- Harry Truman and the Hiss Trial: In 1948, the House Un-American Activities Committee prompted by Congressman Richard Nixon was investigating former State Department official Alger Hiss for Soviet espionage activity. Hiss had embarrassing connections to high-ranking members of both political parties, and Truman invoked executive privilege to block Congress from receiving data about the Hiss case from the FBI or other parts of the executive branch.
- Dwight Eisenhower and the Army-McCarthy Hearings: In 1954, the Senate Internal Security Subcommittee under Senator Joseph McCarthy was investigating alleged Communist infiltration of the Army Signal Corps. Eisenhower, a former Army general who hated McCarthy, invoked executive privilege to forbid his staff and the Department of Defense from cooperating with the investigation.
- Richard Nixon and Watergate: In 1974, special prosecutor Leon Jaworski obtained a subpoena ordering President Nixon to release tapes and transcripts of conversations with White House staff about a 1972 break-in to the offices of the Democratic National Committee in the Watergate building complex. Nixon refused to provide relevant records, invoking presidential communications privilege. When the case reached the Supreme Court, the court ruled that presidential privilege did not override the judicial process when the grounds of withholding evidence was not a military or diplomatic matter but only the general right to confidentiality.
- Ronald Reagan, George H.W. Bush, and Iran-Contra: In the wake of investigations into an illegal arms for hostage exchange by representatives of the Reagan administration, President Reagan did not initially invoke executive privilege, agreeing to testify. However in 1990, after Reagan left office, defendant John Poindexter sought excerpts of Reagan’s White House diaries, which Reagan refused to provide, citing executive privilege and agreeing instead to testify on Poindexter’s behalf. The Bush administration supported Reagan’s position, and the court upheld it, deciding that Reagan’s testimony would be sufficient.
- Bill Clinton and Monica Lewinsky: In 1998, Bill Clinton unsuccessfully attempted to invoke executive privilege to prevent his senior aides from being questioned by prosecutors investigating Clinton’s sexual harassment of Arkansas state employee Paula Jones and related testimony about his affair with White House intern Monica Lewinsky. Chief U.S. District Judge Norma Holloway Johnson ruled that the prosecutor’s need to collect evidence outweighed presidential privilege.
- George W. Bush and Plamegate: In 2008, Attorney General Michael Mukasey was facing contempt of Congress charges for failing to respond to a Congressional committee seeking documents of interviews conducted by special counsel investigators with President George W. Bush and Vice President Dick Cheney regarding a media leak disclosing the identity of CIA officer Valerie Plame. At Mukasey’s request, Bush asserted executive privilege to withhold the documents, citing concerns the subpoena might have on future White House deliberations and cooperation with Department of Justice investigations.
- Barack Obama and Hillary Clinton’s emails: In 2015, during the course of a Congressional investigation into the 2012 terrorist attack on State Department and CIA facilities in Benghazi, investigators became aware that Secretary of State Hillary Clinton had illegally used a private server to exchange emails with Barack Obama. Obama refused to release the emails, citing presidential communications privilege.
- Donald Trump and Spygate: Thus far in investigations into Russian involvement in the 2016 election, President Trump has generally waived executive privilege, allowing administration officials such as James Comey to testify and providing special counsel Robert Mueller with access to officials and documents. However, Trump’s legal team has used executive privilege to gain leverage over the investigation, warning that Trump may keep Mueller’s findings classified unless he gets to review Mueller’s report before its release, feels it is fair, and gets an opportunity to release a rebuttal.
These are just a few of the more dramatic highlights in the colorful history of presidential communications privilege.
How Executive Privilege Impacts Technology
With Presidents now communicating through technological tools such as email, mobile phones, and social media, tech security has become an important part of protecting executive privilege. A communications platform suitable for use by members of the executive branch needs to meet stringent security and compliance(2) standards by employing means such as:
- Enterprise-grade cloud security to protect VoIP, email, and chat communication
- Encryption for both data in transmission and data in storage
- Automated backup to protect sensitive data from ransomware, natural disasters, and other threats
- Compliance with FISMA regulations for government agency security standards
A solution that meets these types of rigid requirements is essential for protecting executive privilege in today’s technological environment.
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