In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon,
but only to the extent of confirming that there is a qualified
privilege. Once invoked, a presumption of privilege is established,
requiring the Prosecutor to make a "sufficient showing" that the
"Presidential material" is "essential to the justice of the case."(418
U.S. at 713-14). Chief Justice Burger
further stated that executive privilege would most effectively apply
when the oversight of the executive would impair that branch's national
Historically, the uses of executive privilege underscore the untested
nature of the doctrine, since Presidents have generally sidestepped
open confrontations with the United States Congress
and the courts over the issue by first asserting the privilege, then
producing some of the documents requested on an assertedly voluntary
Executive privilege is a specific instance of the more general common-law principle of deliberative process privilege and is believed to trace its roots to the English Crown Privilege.
In the context of privilege assertions by US Presidents, "In 1796, President George Washington
refused to comply with a request by the House of Representatives for
documents related to the negotiation of the then-recently adopted Jay Treaty with the Kingdom of Great Britain.
The Senate alone plays a role in the ratification of treaties,
Washington reasoned, and therefore the House had no legitimate claim to
the material. Therefore, Washington provided the documents to the Senate
but not the House."
President Thomas Jefferson continued the precedent for this in the trial of Aaron Burr for treason in 1807.
Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment
to the Constitution, which allows for these sorts of court orders for
criminal defendants, did not provide any exception for the president. As
for Jefferson's claim that disclosure of the document would imperil
public safety, Marshall held that the court, not the president would be
the judge of that. Jefferson complied with Marshall's order.
In 1833, President Andrew Jackson cited executive privilege when Senator Henry Clay
demanded he produce documents concerning statements the president made
to his cabinet about the removal of federal deposits from the Second Bank of the United States during the Bank War.