Can anyone tell me where in the US Constitution (or any federal statute) that defines "executive privilege"?

Question

Or protects it? I understand that classified intelligence is protected but then why would this term have to be used? What is the precedent; I have heard Tony Snow mention George Washington's administartion but I don't recall an incident where Washington invoked "executive privilege".

This is a straightforward question. I am not making a statement for or against the Bush administration. Please do the same when answering this... I only want facts, not opinions. Liberals and conservatives please go to another question if you want to spew your political opinions please.

I personally can find nothing in the Constitution that uses this term in this way (admittedly, I have only scanned it). I am hoping that a lawyer or someone in the legal profession can answer this.

I am referring to the administration's using this terminology to ignore Congressional subpoenas.

Answer 1

Regarding your last comment, where you say:
"I am referring to the administration's using this terminology to ignore Congressional subpoenas."

The president has the power, under Article 2 of the Constitution, to IGNORE Congressional subpoenas if the president has a "need to protect military, diplomatic, or sensitive national security secrets". That is the current United States law. (US v Nixon, 1974)

There is a separation of powers in the US government. The Congress has no power over the president or the Supreme Court. The president has no power over Congress or the Court. The Court has no power over the president or Congress. Only the Constitution has power over all three branches because the Constitution was written "by the People, for the People".

Executive privilege is only one of many relevant terms that do not appear anywhere in the Constitution. The terms "judicial review" and "separation of powers" do not appear anywhere in the Constitution either.

-Andrea, recent JD

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US Constitution, Article 2, Section 1:
"The executive power shall be vested in a President of the United States of America."

The term "executive privilege" does not appear in the Constitution, and is not defined in the Constitution or a statute. It is an inferred power, and part of the Separation of Powers concept.

(The Constitution is the "supreme law of the land", written by and for "the People". So, a statute written by Congress can never give another branch of government rights greater than those already in the Constitution.)

If the president has the duty under Article 1, Section 2, to run the country, then we accept the conclusion that he also has the power to hire a staff, have an office, and have private conversations just like any private citizen who runs a business. The president has the power to do everything needed to run the country, without violating the Constitution. The other branches of government have no power to interfere with his presidential duties - Separation of Powers.

(George Washington invoked executive privilege when he refused to give the House of Representatives documents used in negotiations with England for the Jay Treaty.)

The Supreme Court has traditionally recognized the president's power to keep military and diplomatic secrets from the rest of the government and the public, in order to effectively perform his duties. But executive privilege is not absolute. When the president's executive privilege conflicts with other rights, the Supreme Court balances which rights are most important.

Thus far, the president's rights are deemed more important than the rights of non-citizen prisoners who are not being held within the United States.The Supreme Court feels they do not have due process rights protected by the Constitution.

This is the leading explanation of executive privilege. It's from the famous Supreme Court case, U.S. v Nixon. This is the case where President Nixon claimed executive privilege and refused to turn over the tapes.

U.S. v Nixon
418 US 683 (1974)

Following indictment alleging violation of federal statutes by certain staff members of the White House, the Special Prosecutor filed a motion for a subpoena for the production of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming EXECUTIVE PRIVILEGE, filed a motion to quash the subpoena.

Chief Justice Burger delivered the opinion of the Court:

"Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based."

"In this case the President challenges a SUBPOENA served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications."

"He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities."

"However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, WITHOUT MORE, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."

"Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material."

"We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial."

Answer 2

I'm not a person in the legal profession but I have taken an ap gov't class so I think I can somewhat answer this question. Executive privilege is not specifically mentioned in the Constitution but it is implied from the doctrine of seperation of powers. George Washington set precedent during the time when he made the Jay treaty with England, which was meant to resolve issues between the two nations. The House wanted to see some documents regarding this treaty but since the Senate has the power to ratify treaties and not the House, Washington refused to show the House the documents. I hope that answers your question.

Answer 3

Executive privilege, as this administration is using it, is not mentioned in the Constitution at all. Most of the guidelines for "executive privilege" came out of the Supreme Court case US v. Nixon, in which President Nixon refused to submit to a subpeona. The court ruled that a President cannot refuse to submit to a subpeona when there is no need for them not to. The Supreme Court had this to say:

"To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III."

Hope this helps. :)

Answer 4

The Constitution nowhere expressly mentions executive privilege. Presidents have long claimed, however, that the constitutional principle of separation of powers implies that the Executive Branch has a privilege to resist certain encroachments by Congress and the judiciary, including some requests for information.