Executive privilege isn’t the same as complete immunity, expert explains

President Trump’s legal team has claimed executive privilege as the House select committee investigating the Jan. 6 Capitol insurrection seeks to obtain communications and other records related to that day’s events. But executive privilege isn’t a blanket term. It must be used narrowly and precisely, according to legal experts.

“In modern days, executive privilege means a limited privilege on behalf of the executive to decline to give public information to Congress or to the media, about things that are in the nation’s interest. It doesn’t cover crime, it doesn’t cover anything,” Georgetown University Law Center Professor Victoria Nourse said. 

“Under the court’s rulings, they have to actually pinpoint the precise document or the precise conversation that they are claiming is subject to privilege. It’s easy to say, ‘oh, all I said was secret.’ But if a court is going to review that they have to have something to look at, it has to be particularized,” she said.

Executive privilege isn’t in the Constitution, but it has been around since George Washington. He used it to say no to requests about the Jay Treaty negotiation in order to avoid war.

Then just a few years later, Thomas Jefferson invoked it to keep from testifying and providing documents during the treason trial for his former vice president, Aaron Burr. 

However, it was President Dwight Eisenhower who coined the term executive privilege during the McCarthy hearings in 1954. When Joseph McCarthy was looking to expose people soft on communism in the Army, Eisenhower refused to turn over notes from his meetings with army officials, saying national security may be put at risk.

“It simply means the president’s right to withhold information that he thinks might be, you know, dangerous to the Republic,” she said.

Eisenhower coined the phrase, but it was Nixon who really made it mainstream during the Watergate investigation. President Nixon refused to hand over his tapes regarding Watergate, saying the president is completely immune from judicial processes. In other words, Nixon claimed, the president is above the law. The Supreme Court disagreed with that assertion.

“The ground for asserting the privilege as to subpoenaed materials…cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice,” Justice Warren E Burger ruled in 1974. 

Executive privilege can be confusing because the court gets to reexamine if a clam of executive privilege falls into the scope of it every time a case is brought to them.

A report from the non-partisan Congressional Research Service identified three factors the court looks at when making a decision, including who wrote or got the communication, involvement of a presidential power, and the likelihood of containing important evidence. 

Most cases don’t make it to court because they are usually between Congress and the Executive Branch and the two sides can generally negotiate to sort things out.

“Claims of executive privilege by both presidents have been made almost every day in Washington. And they’re typically negotiated. And they’re negotiated by focusing on a single thing,” Nourse explained. “I’ve been in these negotiations, and typically, it turns out to be a pretty small identified item. And let’s say members of Congress want to see something, then you’ll work out situations,” Nourse said. “When there is a national interest in the information, though, a court will uphold its disclosure.”

As for who can request executive privilege, Nourse says it isn’t limited to current officials.

“Judges tend to be more deferential to a sitting president, because of the demands of the office. But former presidents do have a form of privilege. This happened in the Nixon case, as well. But the court said it’s again, it’s defensible, by a good enough reason,” she said.