Executive privilege is the constitutional principle that permits the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public. This presidential power is controversial because it is nowhere mentioned in the U.S. Constitution. That fact has led some scholars (Berger 1974; Prakash, 1999) to suggest that executive privilege does not exist and that the congressional power of inquiry is absolute. There is no doubt that presidents and their staffs have secrecy needs and that these decision makers must be able to deliberate in private without fear that every utterance may be made public. But many observers question whether presidents have the right to withhold documents and testimony in the face of congressional investigations or judicial proceedings.
Executive privilege is an implied presidential power that is recognized by the courts, most famously in the U.S. v. Nixon (1974) Supreme Court case. There are generally four areas that an executive branch claim of privilege is based: 1) presidential communications privilege; 2) deliberative process privilege; 3) national security, foreign relations or military affairs, and 4) an ongoing law enforcement investigation. In the current controversy over congressional access to Department of Justice documents pertaining to the Fast & Furious scandal investigation, the president and Attorney General Eric Holder are relying on the deliberative process privilege and also the ongoing law enforcement investigation defense.
Not all presidents have used this power for the public good, but instead some have claimed executive privilege to try to conceal wrongdoing or politically embarrassing information. In the controversy over President Barack Obama’s claim of executive privilege over DOJ documents, critics suggest that his action constitutes such an improper use of that power. The president and his defenders argue that he is instead protecting a core presidential function by stopping Congress from intruding into areas where it does not belong.
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