Absolute Executive Privilege Absolutely: The Legacy of U. S. v. Nixon

• In Event: Revisiting Watergate: Crisis, Renewal, and the Presidency

Abstract

Executive privilege is the power presidents have to refuse information or testimony to Congress, the courts, or the general public. This inherent power arose from the beginning but has expanded and evolved over time. No moment has impacted this power more than the Supreme Court’s 1974 decision in United States v Nixon that legitimized this power as constitutional. Every president since Nixon has used executive privilege at least once, and the power has evolved to become a bargaining tool for presidents to use with Congress, similar to veto power. Presidents can threaten executive privilege through a variety of actions, such as direct communication with Congress, executive orders, signing statements, and statements of administration policy (SAPs). The threat of executive privilege can motivate Congress to bargain prior to any official invocations of executive privilege by the president. Privilege threats often lead to cooperation between the administration and Congress, leaving presidents to only invoke executive privilege in specific instances where cooperation breaks down. This paper examines executive privilege in the pre-Nixon post-WWII era, before delving into how executive privilege has evolved over the contemporary presidency. Original archival, primary and secondary source documents are used to demonstrate the legacy left by United States v. Nixon. The legitimization executive privilege created a gray area of power where presidents build on past precedent to push the boundaries of power further. The ambiguity of the Court’s decision, and several subsequent rulings, has left presidents the ability to use the power in ways they see fit, expanding power beyond their predecessors.

Author

• Kevin M. Baron, Siena College