From the very beginning of the American Republic, presidents have asserted the right to withhold certain documents and testimony from other branches and the public. The scope of this executive privilege depends on the political circumstances prevailing at the time. Presidents win some of the contests; on other occasions Congress and the courts decide that the president's interests are outweighed by the needs of the legislative branch, the judiciary, private litigants, and the general public. Most executive-legislative confrontations are resolved through a search for political accommodations that can satisfy the interests of each side. It has been held that executive privilege is a “myth” because the term was not used until the Eisenhower era (Berger 1974). However, without using that precise phrase, presidents had long insisted on their constitutional right to withhold documents (Rozell 2002).

During the First Congress (1789–1791), Congress tested its power to investigate several matters involving the expenditure of funds by the executive branch. It was debated whether the president, without legislative interference, should handle such disputes internally, but Congress pressed for documents and obtained them (Fisher 2004). A more serious issue arose in 1792 after the House appointed a committee to inquire into heavy military losses suffered by the troops of Major General Arthur Saint Clair (1736–1818) to Native American tribes. The House empowered the committee “to call for such persons, papers, and records, as may be necessary to assist their inquiries.” President George Washington met with his cabinet to consider the request of the House. According to notes taken by Thomas Jefferson, the cabinet agreed that the House “was an inquest” and

Copy of a letter from President Richard Nixon invoking executive privilege, July 23, 1973. Though not given an official name until the Eisenhower era, U.S. presidents since the late 1700s have argued for executive privilege, the right to withhold sensitive documents from public view. AP IMAGES

might legitimately initiate inquiries, but that the president “ought to communicate such papers as the public good would permit & ought to refuse those the disclosure of which would injure the public. Consequently were to exercise a discretion” (Rozell 2002, p. 29). In this instance, the cabinet concluded that the papers sought by the House should be turned over.

There is a widespread misconception that President Washington refused to hand over documents on the Jay Treaty to the House of Representatives, arguing that the House was constitutionally excluded from the treaty process. Members of the House were quite aware of that elementary fact, but they sought documents because of their constitutional role in providing funds to implement the treaty. On the Algerine Treaty, adopted a few years before, Washington gave the House documents for that very reason. Regarding the Jay Treaty, many House members had access to the documents by walking over to the Senate or obtaining them through the House Committee on American Seamen. The House failed to get some documents simply because it lost on some close votes (Fisher 2004).

Congress possesses many instruments of power to wrest documents from the executive branch. When President Washington denied the House papers on the Jay Treaty, he said that the only ground on which the House might have legitimately requested the documents was impeachment, “which the resolution has not expressed” (Fitzgerald 1940, p. 3). The power of impeachment, said President James K. Polk (1795–1849), gives to the House of Representatives “the right to investigate the conduct of all public officers under the Government. This is cheerfully admitted. In such a case the safety of the Republic would be the supreme law, and the power of the House in the pursuit of this object would penetrate into the most secret recesses of the Executive Department” (quoted in Richardson 2007, p. 2284).

The appointment process is another lever available to Congress. If a president wants someone confirmed by the Senate, the price might require release of documents the administration would ordinarily prefer to keep private. In 1986, President Ronald Reagan nominated Justice William Rehnquist to be Chief Justice. The Senate Judiciary Committee wanted some memos that Rehnquist had written when he headed the Office of Legal Counsel (OLC) in the Justice Department. Initially the administration refused on the ground that the memos were part of the confidentiality and candor required to effectively advise the president. When it looked like the committee would not report Rehnquist's name for floor consideration without obtaining the documents, the administration was forced to reach an accommodation. This tactic has been used by the Senate a number of times (Fisher 2004).

Congress regularly asks for documents and testimony from the executive branch without triggering a dispute. If resistance is encountered, congressional committees can issue subpoenas and, if those are rebuffed, turn to the contempt power. Each house of Congress has authority to hold executive officials in contempt. Individuals who refuse to testify or produce papers are subject to criminal contempt, leading to fines of no more than $100,000 and imprisonment up to one year. The threat of contempt is usually sufficient to bring cooperation. However, the statute on contempt calls on the Justice Department to take the issue to a grand jury and on some occasions the White House has refused to comply.

Some of these disputes are resolved by federal judges nudging Congress and the executive branch toward a compromise. In 1976, Congressman John Moss (1915–1997) and his subcommittee requested from AT&T information on national security wiretaps conducted by the administration. The Justice Department intervened to oppose compliance with the subcommittee subpoena. An appellate court rejected the claim of the Justice Department that the president “retains ultimate authority to decide what risks to national security are acceptable.” The Court urged executive and legislative officials to settle their differences out-of-court, pointing out that a “compromise worked out between the branches is most likely to meet their essential needs and the country's constitutional balance.” Advising the parties to resolve their differences by seeking middle-ground positions, the Court said that the framers, in adopting a Constitution of general and overlapping provisions, anticipated that a “spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system” (United States v. American Tel. & Tel. Co., 551 F.2d 384 [D.C. Cir. 1976]; United States v. AT&T, 567 F.2d 121 [D.C. Cir. 1977]). The Justice Department and the subcommittee proceeded to work out their differences.

The major Supreme Court case on executive privilege is United States v. Nixon, 418 U.S. 683 (1974), which did not involve a congressional request for executive documents. Instead, the request came from the courts as part of efforts to prosecute those charged with the burglary of the Watergate Hotel. A unanimous Court rejected the argument by President Richard Nixon that the decision to release the Watergate tapes was up to the president, not the courts. The Court ruled that to permit Nixon absolute control over the materials would prevent the judiciary from carrying out its duties and deprive private parties of access to documents needed for their defense.

Dicta in the Court's ruling implied that presidents have a stronger ground in denying release of documents if related to national security. The Court seemed to cede ground if the president claimed a “need to protect Page 152  |  Top of Articlemilitary, diplomatic, or sensitive national security secrets.” However, the judiciary at that time—and increasingly since—has gained access to national security documents. Moreover, if courts decide to defer to executive claims, Congress need not follow and acquiesce. It has legitimate and independent grounds under Article I to obtain national security documents as part of its duty to legislate and supervise executive branch activities (Fisher 2004).