In 1997, Pres. Bill Clinton on executive privilege in a civil lawsuit in which Paula Jones, a former Arkansas state employee while Clinton was governor, alleged Clinton sexual harassment. Lawyers representing Clinton argued that the president should be immune from civil lawsuits during his tenure. The Supreme Court unanimously rejected Clinton`s request. The following year, in a similar case, the court also rejected a claim of privilege by Clinton in connection with conversations he had in the Oval Office with White House advisers (who received federal compensation) about the Jones case. The Court relied heavily on the precedent in the Nixon-Bänder case. While the doctrine of executive privilege may be more relevant to presidents and their administrations, there are other privileges that may apply to you if you are the target of an investigation. For example, marital privilege prevents your spouse from testifying against you, and solicitor-client privilege ensures that communications with your lawyer remain confidential. Contact an experienced litigator near you today to learn more about liens and when they may apply to you. Some, including President Lyndon B. Johnson, thought Eisenhower was going too far with executive privilege. It was recorded that the privilege was used 44 times, sometimes by other members of the executive branch, not even talking about daily routines without Eisenhower`s consent. Johnson stressed that if his administration were to use executive privilege, he would be the only one to invoke it, just like his predecessor John F.
Kennedy. Both presidents used it sparingly. On May 8, 2019, at the attorney general`s request, Trump invoked executive privilege over the entire Mueller report. According to the New York Times, this was Trump`s « first use of secrecy powers as president. » [38] In 1833, President Andrew Jackson invoked executive privilege when Senator Henry Clay asked him to produce documents on statements made by the President to his cabinet regarding the suppression of federal deposits from the Second Bank of the United States during the banking war. [8] « We conclude that if the privilege ground for subpoena documents sought to be used in criminal proceedings is based solely on the public interest in confidentiality, it cannot override the fundamental requirements of due process in the administration of justice. » 27 Like Nixon and Clinton, Obama`s claim to executive privilege was rejected by a federal court and the documents were handed over. In November 1982, President Ronald Reagan signed a directive on congressional requests for information. Reagan wrote that if Congress seeks information that may be subject to executive privilege, then executive branch officials should « ask the congressional organ to keep its request in limbo » until the president decides whether or not to invoke privilege. [12] [13] In 1998, President Bill Clinton sparked controversy when he repeatedly invoked the president`s communications privilege during the Whitewater and Monica Lewinsky scandals. A federal judge ruled against him and he chose not to appeal the decision.
Later, Clinton exercised a kind of negotiated executive privilege when he agreed to testify before the grand jury convened by independent counsel Kenneth Starr after negotiating the terms under which he would appear. Starr said that « absolutely no one is above the law » and said such privilege « must give way » and that evidence « must be turned over to prosecutors » if it is relevant to an investigation. When a beleaguered President Nixon wanted to dodge a request to release recordings he had made of conversations with advisers and advisers in the Oval Office, he invoked executive privilege. The Supreme Court ultimately concluded that it had no valid basis for retaining the secret recordings. Officials of the U.S. Securities and Exchange Commission (SEC) testified before the U.S. House of Representatives Financial Services Committee Subcommittee on February 4, 2009. The subject of the hearings was why the SEC did not act when Harry Markopolos, a private fraud investigator in Boston, alerted the SEC and described his persistent and unsuccessful efforts to get the SEC to investigate Bernard Madoff beginning in 1999. [31] One public servant invoked executive privilege by refusing to answer certain questions. [32] [33] Although the President is the subject of criminal proceedings, the question remains what are the limits of this process. The Court has recognized several limitations on a prosecutor`s ability to obtain evidence from the president through a criminal subpoena.21 First, the president, like any citizen, may challenge a particular subpoena on the grounds that it was issued in bad faith or was too broad.22 Second, the timing and extent of the criminal discovery must depend on the type of office of the president – for example: the provision of consideration in procedural planning to avoid significant interference with the President`s official duties.23 Third, the President may raise constitutional challenges specific to a subpoena and argue that compliance with a particular subpoena would significantly impede his or her efforts to perform an official function.24 As the Court first did in United States v. Nixon, a particularly notable constitutional challenge that a president can bring against a criminal subpoena, is a claim of executive privilege in some presidential communications.25 The Supreme Court addressed executive privilege in United States v.
Nixon, the 1974 case in which Watergate special counsel Archibald Cox asked President Richard Nixon to produce the recordings of the conversations. that he and his colleagues in the Oval Office of the White House had criminal charges against members of the Nixon administration for breaking into the Watergate complex. President Nixon invoked privilege and refused to provide documents. During the administration of George W. Bush (2001-09), the president and his staff invoked executive privilege on several occasions. For example, in one case, Vice Pres. Dick Cheney refused to turn over documents to a congressional committee related to meetings with business leaders on the government`s energy policy. Congress sued Cheney in federal courts, but the vice president prevailed. The Supreme Court concluded that the document requirement was too broad and that the potential violation did not reach the level of criminality. In another case, however, White House counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to respond to a congressional subpoena to fire several federal prosecutors who allegedly did not support Bush administration policies.
The U.S. Court of Appeals for the District of Columbia ordered Miers and Bolten to comply. (Miers was later removed from office by the House Judiciary Committee in a closed-door session in June 2009 after the Bush administration left office. Bolton continued to growl.) The disclosure was at issue in 2004, when the court considered a claim of executive privilege, which was invoked as an impediment to investigative orders for information revealing the identities of individuals serving on an energy task force chaired by the vice-chair.30 Although the case was referred for narrow technical reasons, the court distinguished United States v. Nixon, 31 and emphasized the importance of confidentiality in the President`s deliberations when advising the Court of Appeals on how to proceed.32 Before becoming Attorney General in 1991, Deputy Attorney General William P. Barr issued guidelines in 1989 on how to respond to congressional requests for confidential management information. He wrote: « It is only when the adjustment process cannot resolve a dispute and a subpoena is issued that it becomes necessary for the President to consider asserting executive privilege. » [14] [12] After Nixon massively used executive privilege to block investigations into his actions, Ford went diligent in minimizing its use. This, however, has complicated his efforts to keep congressional investigations under control. Political scientist Mark J. Rozell concludes that Ford: However, the court went on to say that privilege was not absolute. Federal courts have jurisdiction to interpret and delimit claims arising from express and implied powers.
The constitutional decisions of the other branches are due to deference, but it is the task of the courts, to exercise judicial power, to say what the law is. The judiciary has a duty to do justice to law enforcement, which involves the application of an adversarial criminal justice system in which all but clearly privileged facts must be provided. Thus, while the President`s claim of privilege is entitled to respect, courts must weigh two types of interests if the claim is based solely on a broad and undifferentiated claim of confidentiality.