The Executive Privilege Is Far From Absolute

President Donald Trump answers questions from the media while departing the White House on October 11, 2019, Washington, D.C.

For a man who says he has nothing to hide, President Donald Trump and his administration seem to want to keep an awful lot hidden. Following a week of depositions and testimony featuring acting Director of National Intelligence Joseph Maguire and the U.S. Intelligence Community Inspector General Michael Atkinson, the White House abruptly changed course last week, signaling a shift in its approach to the impeachment inquiry. On October 8, after the State Department reportedly ordered U.S. Ambassador to the European Union Gordon Sondland not to appear for a deposition with House investigators, the president’s chief legal adviser informed House leadership that President Trump and his administration would not comply with the impeachment inquiry. Subpoenas immediately followed.

Remarkably, despite White House efforts to block her participation, former U.S. Ambassador to Ukraine Marie Yovanovitch decided to appear before House investigators—and she may have inspired others to step forward, too. Fiona Hill, former White House adviser on Russia, appeared before House investigators on Monday, and Ambassador Sondland is expected to appear before House investigators on Thursday, despite earlier White House efforts to keep him quiet. Although the White House continues to try to limit what current and former administration employees can say, lawyers representing those employees have pushed back, arguing that the executive privilege does not apply. With a number of hearings and document production deadlines looming, there will be many opportunities for the White House to attempt to withhold cooperation.

The White House’s central claim is that it is not required to turn over certain documents or to permit certain testimony because the information pertains to deliberations that are protected from disclosure under the executive privilege, a long-standing doctrine rooted in the separation of powers that permits the executive branch to protect the confidentiality of presidential deliberations. The U.S. Supreme Court has recognized the president’s constitutionally based privilege to withhold certain information from disclosure to the public or Congress—but these constraints are far from absolute. There are important limitations on the president’s ability to withhold information from Congress.

What the executive privilege does—and does not—protect

The executive privilege exists to protect the president’s legitimate interest in, at least under some circumstances, preserving the confidentiality of internal communications that is essential to effective consultation. Presidential claims of a right to protect the confidentiality of information from disclosure to Congress have been a common theme in executive-congressional relations dating back to the late 1700s. Since then, presidents have withheld information from Congress when its disclosure would harm national security or impede sensitive negotiations as well as for the purpose of ensuring they receive effective counsel from their advisers. As former President Dwight D. Eisenhower said in 1955:

There is no business that could be run if there would be exposed every single thought that an adviser might have, because in the process of reaching an agreed position, there are many, many conflicting opinions to be brought together. And if any commander is going to get the free, unprejudiced opinions of his subordinates, he had better protect what they have to say to him on a confidential basis.

However, the executive privilege is not absolute, and it is important to be clear about what the executive privilege does not protect.

  • The executive privilege does not protect the president when he is acting in his personal capacity. The privilege only protects deliberations that relate to the president’s official duties. It therefore does not protect communications that relate to personal matters such as an incumbent president’s or his advisers’ communications related to political campaign work.
  • The executive privilege does not protect information related to presidential decisions once they have been made. The privilege is intended to protect deliberations and permit the flow of confidential ideas—not to conceal the president’s decisions or the actions that flow from them. Therefore, if communications relate to a decision the president has made or direct federal employees to undertake activities on the president’s behalf, the executive privilege does not apply.
  • The executive privilege does not protect communications related to the current or future commission of a crime. To the extent that the communications relate to a potential violation of law, they would not be protected from disclosure under the privilege.
  • The executive privilege does not protect communications that are never received by the president or his office. Communications between the president’s agents—such as text messages between parties that do not include the president or White House officials—are not protected by the privilege.
  • The executive privilege cannot provide absolute immunity to congressional subpoenas. Courts have found that Article I of the U.S. Constitution grants Congress the “power of inquiry,” and this power carries with it the “process to enforce it.” Subpoenas issued pursuant to an authorized investigation are therefore, as one court put it, “an indispensable ingredient of lawmaking.” And history supports this: Since the 1970s, more than 70 senior advisers to the president who were subject to subpoenas have testified before congressional committees.

As the impeachment inquiry continues, the limitations on the executive privilege and the president’s ability to protect communications from disclosure to Congress are sure to come into greater focus. As that happens, impeachment watchers should scrutinize claims of executive privilege because, while the executive privilege has an important place in the separation of powers, history and the judicial record show that it is far from absolute.

Katrina Mulligan is the managing director for National Security and International Policy at the Center for American Progress. Aminata Diallo is an intern for National Security and International Policy at the Center.