Executive privilege is not explicitly mentioned anywhere in the Constitution, the foundation of U.S. law.
But the Supreme Court has said that it is “fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.”
The term “executive privilege” was not used until the 1950s. The doctrine’s contours were unclear until a 1974 Supreme Court case. In U.S. v. Nixon, President Richard Nixon was ordered to deliver tapes and other subpoenaed materials to a federal judge for review. The justices ruled 9-0 that a president’s right to privacy in his communications must be balanced against Congress’ need to investigate and oversee the executive branch.
U.S. v. Nixon is also widely understood to mean that executive privilege cannot be used to cover up wrongdoing. That view was endorsed by current U.S. Attorney General William Barr during his Senate confirmation hearing.
One lesson of U.S. v. Nixon is that an executive privilege claim is particularly weak when Congress has invoked its power to remove a president from office through impeachment, said Frank Bowman, a law professor at the University of Missouri.
In the impeachment context, “virtually no part of a president’s duties or behavior is exempt from scrutiny,” Bowman said.
There are so few court decisions on executive privilege that it is hard to be certain if Trump can withhold the unredacted report and underlying evidence, said Ross Garber, a lawyer in Washington who focuses on political investigations.
But to prevail in court the White House will eventually need to be more specific about which documents are protected by executive privilege and why, Garber said.
In a letter to Trump on Wednesday, Attorney General William Barr encouraged the president to make a “preliminary, protective assertion of executive privilege designed to ensure your ability to make a final assertion, if necessary, over some or all of the subpoenaed materials.”
Some legal experts have argued that Trump long ago forfeited, or waived, his right to make an executive privilege claim over conversations described by witnesses in Mueller’s investigation and related documents.
Much like the attorney-client privilege, executive privilege is intended to keep conversations private. Generally speaking, once third parties are told about such conversations, they are no longer secret and the privilege has been waived, legal experts said.
Other lawyers have argued that making witnesses available for interviews with law enforcement officials is not a total waiver of executive privilege. They said Trump could still invoke the doctrine to limit disclosure of documents relating to the interviews.
Party on Garth!