Executive Privilege and Presidential Communications: Judicial Principles [May 12, 2022]   [open pdf - 1MB]

From the Introduction: "Presidents have claimed a right to withhold their communications from Congress since the start of the Republic. Congress's resistance to such claims, however, is just as grounded in history. The resulting, recurring, and often prominent disagreements over what has come to be known broadly as 'executive privilege' tend to place in opposition two implied and often competing constitutional principles: Congress's right to obtain information necessary to carry out its legislative functions and the President's interest in protecting the confidentiality of his (and sometimes his subordinates') communications. Unlike more traditional legal disagreements between parties, resolution of these inter-branch executive privilege disputes has not historically come from the courts. Instead, when conflict has been avoided, it has typically been because of a process of compromise and accommodation in which absolute claims--for either access or confidentiality--are relinquished and replaced by a negotiated resolution acceptable to both Congress and the Executive. [...] This report addresses the judicial treatment of a core component of 'executive privilege': the presidential communications privilege. The report begins by identifying the various executive privileges in order to distinguish the presidential communications privilege from other executive branch confidentiality protections. It then discusses--in historical context--notable judicial opinions to help elucidate the legal standards applicable to disputes between Congress and the President over presidential communications. The report concludes by addressing the presidential communications privilege's application to former Presidents."

Report Number:
CRS Report for Congress, R47102
Public Domain
Retrieved From:
Congressional Research Service: https://crsreports.congress.gov/
Media Type:
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