Executive Privilege

Presidents have withheld information from Congress since George Washington refused the House's request for papers on the Jay Treaty in 1796, arguing that only the Senate had a role in treaties. The term executive privilege came into use in the 1950s under Dwight Eisenhower, who invoked it to keep administration officials from testifying in Senator Joseph McCarthy's Army hearings. The privilege is not in the Constitution. Courts have recognized it as implied by the separation of powers and the President's need for candid advice.

In United States v. Nixon in 1974 the Supreme Court unanimously recognized the privilege but held that it is qualified, not absolute, and that a generalized claim of confidentiality must yield to the specific need for evidence in a criminal trial. Nixon released the subpoenaed Watergate tapes and resigned sixteen days later. Courts distinguish the presidential communications privilege, covering advice to the President, from the broader deliberative process privilege covering agency decision-making, and they give less weight to claims made to shield wrongdoing.

Most privilege disputes with Congress are settled by negotiation rather than in court, because lawsuits take years and Congress has few quick ways to compel compliance. The Justice Department does not prosecute officials who refuse to testify on a President's instruction. In Trump v. Thompson in 2022 the Supreme Court let the National Archives release records to the January 6 committee over a former President's objection when the sitting President declined to assert the privilege.