The Scope and Limits of Executive Privilege

By Justin Yang

Justin Yang is a sophomore at the University of Pennsylvania studying Politics, Philosophy, and Economics.

The administration of President Donald Trump has been embroiled by scandal, and as various former and current officials testified before Congress, the issue of executive privilege has been raised from the front pages to the congressional committee rooms. Questions of whether President Trump might invoke executive privilege at a later stage are also being asked. But what exactly is executive privilege, what is its scope, and how can it be used?

Executive privilege is the presidential claim to a “right to preserve the confidentiality of information and documents in the face of legislative” and judicial demands. [1] Although such a privilege is not an explicit right the Constitution grants to the executive branch, its justification is rooted in the doctrine of separation of powers. The argument is that if the internal communications, deliberations, and actions of one branch can be forced into public scrutiny by the other two co-equal branches of government, it will impair the supremacy of the executive branch over its Constitutional activities. This is because the president benefits from the executive branch’s advice and exchange of ideas , and forcing it all into public scrutiny can harm the integrity of these discussions. Additionally, it undermines the ability of the executive branch to hold sensitive military, diplomatic, and national security information. [2]

Of course, because executive privilege is not explicitly mentioned in the Constitution, its exact scope and extent is ambiguous and disputed. After all, it was not until the Watergate scandal in the 1970s that such a privilege of presidential confidentiality was first judicially established “as a necessary derivative of the President’s status in the U.S. constitutional scheme of separated powers.” [1] In United States v. Nixon (1974), the Supreme Court broadly established the reach and limits of executive privilege: the president can apply it when asked to share information pertaining to presidential decision-making that he believes should remain confidential, but it is not absolute and is subject to a balance of competing interests and needs of the respective branches of government. For Nixon, the interest of a criminal trial overcame his invocation of executive privilege, resulting in him having to hand over the tapes that brought down his presidency. [3]

Still, the case only sketched out the broad scope of executive privilege, and there are still points of contention between the White House and Congress. One such example extends to the deliberative process within the executive branch that doesn’t involve the president. The executive branch argues that executive privilege covers even deliberations within executive agencies, as those discussions also require candid discussions and exchanges of ideas and are not immune to the chilling effect the threat of public scrutiny can bring. On the other hand, Congress argues that there is no constitutional backing to this aspect of executive privilege, and that it does not extend to deliberations within agencies. [1] This dispute became central during the Operation Fast and Furious scandal, where the Department of Justice refused to obey a congressional subpoena, and the matter was eventually settled in court. In 2016, the District Court for the District of Columbia ruled in favor of the Obama administration in Committee on Oversight v. Lynch by applying the parameters set in Nixon to the Department of Justice. This effectively acknowledged that the Department is covered by executive privilege.


Another such dispute between the political branches is much more recent. During the testimony of Attorney General Jeff Sessions in June, he refused to answer questions on discussions he had with the president in order to, in his words, “[protect] the president’s constitutional right by not giving it away before he has a chance to view it and weigh it.” [4] Some senators saw this as an invocation of executive privilege without actually invoking it, and therefore an illegitimate reason to refuse to answer their questions.

This brings us to the question of how executive privilege can be invoked. Put simply, it is invoked only when the president says so. The Attorney General cannot invoke it himself, although in June he cited valid Department of Justice rules – namely a memorandum issued by Reagan in 1982 – in refusing to answer questions. [4] In addition, the common practice between the executive and legislative branches has been to negotiate and compromise amongst themselves before executive privilege is formally invoked and the courts become involved. [2] In fact, the Court of Appeals for the D.C. Circuit has said in United States v. AT&T (1977) that “where conflicts in scope of authority [arise] between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute…” [1]

There are also additional considerations before executive privilege should be invoked. The executive branch, and the Department of Justice in particular, considers whether Congress’ demand for information is legal and legitimate, whether the privilege is asserted to conceal evidence for criminal wrongdoing – in which case it cannot be invoked – and whether the privilege has already been effectively waived through prior public disclosure of the information. [2] Perhaps more importantly, the president also has politics to consider before formally and explicitly invoking executive privilege, as regardless of the facts, an invocation creates the impression of an attempt to obstruct justice.

The president is entitled to keep certain information confidential, away from the prying eyes of congressional committees, in order to be able to take care and faithfully execute the laws of the United States. However, this privilege is neither absolute nor unambiguous, with numerous qualifications and areas of dispute that have yet to be resolved. Executive privilege is ultimately a weapon of last resort, but it has its limits, and its invocation will certainly inflict a political cost on the president who decides to use it.


[1] Garvey, Todd. “Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments.” Congressional Research Service, December 15, 2014. Accessed June 17, 2017. https://fas.org/sgp/crs/secrecy/R42670.pdf
[2] Bies, John E. “Primer on Executive Privilege and the Executive Branch Approach to Congressional Oversight.” Lawfare, June 16, 2017. Accessed June 17, 2017. https://www.lawfareblog.com/primer-executive-privilege-and-executive-branch-approach-congressional-oversight
[3] “United States v. Nixon.” Justia. Accessed June 18, 2017. https://supreme.justia.com/cases/federal/us/418/683/case.html
[4] Savage, Charlie. “Explaining Executive Privilege and Sessions’s Refusal to Answer Questions.” New York Times, June 15, 2017. Accessed June 18, 2017. https://www.nytimes.com/2017/06/15/us/politics/executive-privilege-sessions-trump.html
Photo Credit Flickr User: U.S. Embassy, Jakarta

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