When Congress Comes Calling

When Congress Comes Calling: A Primer on the Principles, Practices, and Pragmatics of Legislative Inquiry
IV. Constitutional Testimonial
Privileges of Witnesses
Congress’ broad investigatory powers are constrained both by the structural limitations imposed by our constitutional
system of separated and balanced powers and by the individual rights guaranteed by the Bill of
Rights. Thus, both the President and individuals called as witnesses can assert various privileges, which enable
them to resist or limit the scope of congressional inquiries. These privileges, however, are also limited.
The Supreme Court has recognized a constitutionally based privilege of the President to protect the confidentiality
of documents or other information that reflects presidential decision making and deliberations. This executive
privilege, however, is qualified. Congress and other appropriate investigative entities may overcome the
privilege by a sufficient showing of need and the inability to obtain the information elsewhere. Moreover, neither
the Constitution nor the courts have provided a special exemption for national security or foreign affairs
information. With regard to individual rights, the Supreme Court has recognized that individuals subject to
congressional inquiries are protected by the First, Fourth, and Fifth Amendments, though in many important
respects those rights may be qualified or denied by Congress’ constitutionally rooted investigatory authority.
A. Executive Privilege
Executive privilege is a doctrine that enables the President to withhold certain information from disclosure to
the public or even Congress. The doctrine is based upon constitutional principles of separation of powers, and
is designed to enable the President to receive candid advice from advisers, as well as to safeguard information
whose disclosure might threaten national security.
1. The Presidential Communication Privilege: A Summary of the State of the Law
The presidential communications privilege is a subcategory of executive privilege that protects the core communications
of advisers closest to the President. There is a great deal of confusion about the actual scope of the
presidential communications privilege. Various opinions and pronouncements from the Justice Department’s
Office of Legal Counsel and the White House Counsel’s Office have described a very broad scope and reach
of the presidential privilege. However, recent court opinions have reflected a much narrower understanding
of the privilege, and no judicial ruling on the merits has upheld a claim of presidential privilege since the
Supreme Court’s 1974 ruling in United States v. Nixon, which recognized the qualified privileged but denied
its efficacy in that case. In practice, many claims of executive privilege have been withdrawn in the face of adamant
congressional resistance.
The current state of the law of presidential privilege, described more fully below, may be briefly summarized as
follows:
33 The constitutionally based presidential communications privilege is presumptively valid when asserted.
33 There is no requirement that the President have seen nor even been aware of the documents over which he
or she claims privilege.
33 The communication(s) in question must relate to a “quintessential and non-delegable presidential power”
that requires direct presidential decision making. The privilege is limited to the core constitutional powers
of the President, such as the power to appoint and remove, the Commander-in-Chief power, the sole authority
to receive ambassadors and other public ministers, and the pardon power.
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