What is Executive Privilege?

Executive privilege is a power presidents have asserted to withhold information from Congress and the courts on the grounds that secrecy is essential to the performance of certain presidential duties. It particularly has covered communications between the president and his advisers, on the theory that the leader will receive the most candid advice should his conversations remain confidential.

In 1974, the Supreme Court denied President Richard Nixon’s effort to quash the Watergate special prosecutor’s subpoena for White House tape recordings of Oval Office conversations. While the court recognized the president’s general interest in confidentiality, it found it was outweighed by the needs of a specific criminal investigation.

A pair of 2020 Supreme Court decisions involving subpoenas for then-President Donald Trump’s records gave further weight to a prosecutor’s interest. The court found that congressional investigators must show a special need for certain records related to a president, but that he was entitled to no special deference from a New York state grand jury subpoena.

“The public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence,” Chief Justice John Roberts wrote for the court.