Executive Privilege and Presidential Communications: Judicial Principles

Executive Privilege and Presidential Communications: Judicial Principles

Executive Privilege and Presidential
May 12, 2022
Communications: Judicial Principles
Todd Garvey
The presidential communications privilege (Communications Privilege) derives implicitly from
Legislative Attorney
the President’s powers under Article II of the U.S. Constitution and the separation of powers, and

has been justified by the need to protect the confidentiality of the President’s decisionmaking
process. The Communications Privilege’s foundation lay in the proposition that in making

judgments and reaching decisions, the President and his advisers must be free to candidly discuss
issues, express opinions, and explore options without fear that those deliberations will later be made public.
Today, the Communications Privilege is qualified, rather than absolute, and applies only to confidential communications
made in support of official presidential decisionmaking that directly involve the President or close presidential advisers. This,
however, was not always so, and for the vast majority of American history, the existence and appropriate scope of the
Communications Privilege was uncertain and nearly untouched by the courts.
It was not until the years during and immediately following the Nixon Administration—what has been arguably called the
defining era of the Communications Privilege’s judicial development—that the courts first established the Communications
Privilege’s existence and began to delineate its application in criminal and civil proceedings, as well as its use in response to
Congress’s exercise of oversight and legislative powers. In United States v. Nixon, Senate Select Committee v. Nixon, Nixon
v. Administrator of General Services, and Dellums v. Powell, the judiciary established the basic contours of the
Communications Privilege, including its constitutional source and how it must generally be balanced in any given situation
against the public’s interest in disclosure.
Significant judicial decisions addressing presidential assertions of the Communications Privilege since the Nixon era have
been relatively rare. While executive privilege disputes between Congress and the executive branch have arisen in nearly
every subsequent Administration, no appellate court has directly addressed the merits of a claim of Privilege by a sitting
President in the congressional investigation context since Senate Select in 1974. There have, however, been a handful of
important appellate opinions in other contexts—such as In re Sealed Case and Judicial Watch v. DOJ—that provide added
specificity to the scope and boundaries of the Communications Privilege and may inform its application in the congressional
setting. These opinions by the U.S. Court of Appeals for the District of Columbia Circuit bind district courts within that
circuit, but do not hold the same precedential value as decisions of the Supreme Court.
The courts also appear to have established that former Presidents retain the ability to assert executive privilege over protected
communications that occurred during their term of office. The Communications Privilege protects the presidency, however,
and not individual Presidents; therefore, the strength and the ultimate success of any privilege claim by a former President
appears to be highly influenced by whether that claim is supported by the sitting President.

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Contents
Introduction ..................................................................................................................................... 1
Defining the Executive Privileges ................................................................................................... 3
Tracing the Judicial Evolution of the Presidential Communications Privilege ............................... 5
The Nixon Era ................................................................................................................................. 6
Watergate: Applying the Communications Privilege in the Criminal and
Congressional Setting ............................................................................................................ 6
After Nixon’s Resignation: Applying the Communications Privilege in the Civil and
Legislative Setting................................................................................................................ 15
Post-Nixon: Lower Courts Filling in the Gaps .............................................................................. 18
Elaborating on the Communications Privilege’s Scope: Communications Not
Involving the President ........................................................................................................ 19
Cheney v. United States District Court: The Communications Privilege and the
Separation of Powers .................................................................................................................. 23
The Communications Privilege and Former Presidents ................................................................ 24
A Summary of the Basic Judicially Established Contours of the Communications
Privilege ..................................................................................................................................... 28

Contacts
Author Information ........................................................................................................................ 29

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Executive Privilege and Presidential Communications: Judicial Principles

Introduction
Presidents have claimed a right to withhold their communications from Congress since the start of
the Republic.1 Congress’s resistance to such claims, however, is just as grounded in history.2 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.3
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.4
The traditional preference for political rather than judicial solutions is supported by the fact that
neither Congress nor the President appears to have turned to the courts to resolve an inter-branch
executive privilege dispute until the 1970s.5 The courts have also been wary of judicially declared
outcomes and have generally sought to avoid adjudicating executive privilege disputes, instead
encouraging the political branches to settle their differences while noting that judicial intervention
should, as a prudential matter, “be avoided whenever possible” or at least “delayed until all
possibilities for settlement have been exhausted.”6

1 See In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997) (“Since the beginnings of our nation, executive officials
have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial
to fulfillment of the unique role and responsibilities of the executive branch of our government.”).
2 Disputes between Congress and the President over executive privilege can be traced back to the 1790s. See MARK J.
ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL POWER, SECRECY, AND ACCOUNTABILITY 31-32 (2002) (describing the
House’s resistance to President Washington’s refusal to disclose information relating to the Jay Treaty).
3 United States v. Nixon, 418 U.S. 683, 711 (1974) (“Nowhere in the Constitution . . . 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.”); Watkins v. United States, 354 U.S. 178, 187 (1957) (“The power of the Congress to conduct
investigations is inherent in the legislative process.”).
4 See In re Sealed Case, 121 F.3d at 729 (“[G]iven the restrictions on congressional standing and the courts’ reluctance
to interfere in political battles, few executive-congressional disputes over access to information have ended up in the
courts.”); See also Breaking the Logjam: Principles and Practice of Congressional Oversight and Executive Privilege,
Hearing before the Senate Committee on the Judiciary, Subcommittee on Federal Courts, Oversight, Agency Action
and Federal Rights, Aug., 3, 2021.
5 See Senate Select Comm. On Presidential Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); see also JAMES
HAMILTON, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS 197 (1976) (noting that the Senate
Select Committee’s lawsuit to enforce the subpoena issued to President Nixon was “the first civil action to enforce a
congressional subpoena issued to the executive”).
6 See Cheney v. United States Dist. Court, 541 U.S. 913, 389 (2004) (“These ‘occasion[s] for constitutional
confrontation between the two branches’ should be avoided whenever possible”); United States v. House of
Representatives, 556 F. Supp. 150, 152 (D.D.C. 1983) (observing that “[w]hen constitutional disputes arise concerning
the respective powers of the Legislative and Executive Branches, judicial intervention should be delayed until all
possibilities for settlement have been exhausted”). This reticence to exert judicial power as a means of solving
oversight disputes between Congress and the executive branch reached its apex in the short-lived decision of
Committee on the Judiciary v. McGahn, 951 F.3d 510 (D.C. Cir. 2020). There, the United States Court of Appeals for
the D.C. Circuit held, as a constitutional matter, that courts “lack authority to resolve disputes between the Legislative
and Executive Branches until their actions harm an entity” outside the federal government. Id. at 516 (citing Raines v.
Byrd, 521 U.S. 811, 834 (1997) (Souter, J., concurring in the judgment)). That opinion was reversed on appeal by the
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As a result, the judiciary has historically played a limited role in determining how executive
privilege may be used to restrict congressional access to information.7 The Supreme Court has
never directly considered the application of executive privilege in the context of a congressional
investigation.8 Lower federal court decisions are similarly scarce.9 The only appellate-level
decision to reach the merits of an executive privilege dispute between Congress and a sitting
President occurred nearly 50 years ago.10 In light of this near judicial vacuum, the historical
actions and interpretations of the branches necessarily play a significant role in establishing the
meaning of executive privilege.
There are, however, a handful of judicial opinions that help explain the legal and constitutional
parameters of executive privilege. Some of these decisions come from the Supreme Court, while
others were issued by federal appellate or district courts.11 These decisions establish only the
privilege’s basic contours, while ultimately concluding that disputes between Congress and the
President over privileged materials typically require the judiciary to engage in an imprecise, fact-
based, and arguably subjective balancing of the various interests at stake.12
Specific judicially imposed outcomes may be rare, but the impact of more general judicially
established standards can reach well beyond the courtroom. Legal principles often guide
negotiations between the political branches, influence the accommodations process, and
ultimately inform the settlement of disputes. Moreover, judicially established principles limiting
the outer confines of executive privilege can be used by Congress to combat what it may view as
inappropriate uses of the privilege to impede or delay congressional access to information.

D.C. Circuit’s en banc opinion holding that neither the separation of powers nor principles of standing barred the courts
from hearing the House’s lawsuit. 968 F.3d 755, 760-61 (D.C. Cir. 2020). See also CRS Legal Sidebar LSB10432,
Resolving Subpoena Disputes Between the Branches: Potential Impacts of Restricting the Judicial Role, by Todd
Garvey.
7 In addition to other justiciability issues, the Speech or Debate Clause, which generally prevents direct pre-
enforcement challenges to congressional subpoenas, also plays a role in limiting litigation connected to Congress’s
investigatory powers. See CRS Report R45043, Understanding the Speech or Debate Clause, by Todd Garvey.
8 The Supreme Court recently issued an opinion addressing congressional subpoenas for presidential records, but that
case did not involve an assertion of executive privilege. See Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2028 (2020)
(“The President did not, however, resist the subpoenas by arguing that any of the requested records were protected by
executive privilege.”); id. at 2026 (“We have never addressed a congressional subpoena for the President’s
information.”).
9 There has been a recent increase in information access disputes between the branches making their way to the courts.
See, e.g., CRS Testimony TE10064, Civil Enforcement of Congressional Authorities, by Todd Garvey. These cases
have not, however, directly involved the merits of an inter-branch executive privilege disputes.
10 See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). The D.C.
Circuit recently reached the merits of a dispute between the House and a former President. See “The Communications
Privilege and Former Presidents” infra.
11 Decisions of the Supreme Court bind the entire judiciary while federal appellate decisions serve as binding precedent
within only the applicable circuit. See In re Korean Air Lines Disaster, 829 F.2d 1171, 1176 (D.C. Cir. 1987). The
decision of a federal district court, though possibly holding persuasive value, does not serve as binding precedent.
Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011).
12 See, e.g., Nixon v. Sirica, 487 F.2d 700,717 (D.C. Cir. 1973) (“[A]pplication of Executive privilege depends on a
weighing of the public interest protected by the privilege against the public interests that would be served by disclosure
in a particular case”); Senate Select, 498 F.2d at 731 (holding that Congress overcomes the presumptive protections of
executive privilege when “the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the
Committee's functions.”). See also, Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98
MARQ. L. REV. 881, 946 (2014) (noting that “[i]n the absence of Supreme Court pronouncements, the political branches
feel legally unconstrained to adhere to their incompatible constitutional perspectives”).
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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.
Defining the Executive Privileges
There is not a single “executive privilege.” Instead, a suite of distinct privileges exist, each of
different—though sometimes overlapping—scope.13 The political branches, in support of their
often competing interests and priorities, have adopted somewhat divergent views on these
different component privileges. Whereas Congress has generally interpreted executive privilege
narrowly, limiting its application to the types of presidential, national security, and diplomatic
communications referenced by judicial decisions,14 the executive branch has historically viewed
executive privilege more broadly, providing protections to different categories of documents and
communications that implicate executive branch confidentiality interests.15 Under the executive
branch’s interpretation, these privileges include
 the state secrets privilege, which protects certain military, diplomatic, and
national security information;16
 the presidential communications privilege, which generally protects confidential
communications between the President and his advisers that relate to presidential
decisionmaking, as well as a certain subset of communications not involving the
President but that are still made for purposes of advising the President;17
 the deliberative process privilege, which protects pre-decisional and deliberative
communications within executive branch agencies;18 and

13 In re Sealed Case, 121 F.3d at 736 (noting that “executive officials have claimed a variety of privileges to resist
disclosure of information”). See also John E. Bies, Primer on Executive Privilege and the Executive Branch Approach
to Congressional Oversight, LAWFARE (June 16, 2017, 8:30AM) (“[A] review of executive branch practice identifies a
number of categories of information that the executive branch, at least, believes may be protected by an invocation of
the privilege.”), https://www.lawfareblog.com/primer-executive-privilege-and-executive-branch-approach-
congressional-oversight.
14 See H. COMM. ON OVERSIGHT AND GOV’T REFORM, 110TH CONG., REP. ON PRESIDENT BUSH’S ASSERTION OF
EXECUTIVE PRIVILEGE IN RESPONSE TO THE COMMITTEE SUBPOENA TO ATTORNEY GENERAL MICHAEL B. MUKASEY 8
(Comm. Print 2008) (rejecting an executive privilege claim on the grounds that “[t]he Attorney General did not cite a
single judicial decision recognizing this alleged privilege”); H.R. REP. NO. 105-728, at 16 n. 43 (1998) (“As the D.C.
Circuit has recently held, the doctrine of executive privilege which arises from the constitutional separation of powers
applies only to decisionmaking of the President. Since the subject of the Committee’s subpoena is not one that does (or
legally could) involve Presidential decisionmaking, no constitutional privilege could be invoked here.”) (citations
omitted)).
15 See Dep’t of Justice, Office of Legal Counsel, Contempt of Congress of an Executive Branch Official Who Has
Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 116 (“The scope of executive privilege includes several
related areas in which confidentiality within the Executive Branch is necessary for the effective execution of the
laws.”).
16 Id. at 116-17.
17 Id. at 116.
18 See Dep’t of Justice, Office of Legal Counsel, Assertion of Executive Privilege Over Documents Generated in
Response to Congressional Investigation into Operation Fast and Furious, 36 Op. O.L.C. 1 (2012).
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 the law enforcement privilege, which protects the contents of open (and
sometimes closed) law enforcement files, including communications related to
investigative and prosecutorial decisionmaking.19
The executive branch has tended to consolidate these various privileges into one “executive
privilege,” particularly when responding to congressional investigative requests.20 Congressional
committees, on the other hand, have typically distinguished among the different individual
privileges.21
The executive privileges may appropriately be treated as distinct, not only because of the different
communications they protect, but also because the privileges appear to arise from different
sources of law, with some more firmly established in judicial precedent than others. In short, the
different privileges apply with different strengths and, in the congressional context, are balanced
against Congress’s Article I powers differently. For example, courts have “traditionally shown the
utmost deference” to presidential claims of a need to protect military or diplomatic secrets.22 The
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President’s more generalized interest in the confidentiality of his other communications, though
arising implicitly from the Constitution, has not been “extended this high degree of deference.”23
The other privileges have been given less weight, and must be assessed differently in the face of
an exercise of Congress’s investigative powers. For example, when compared to the presidential
communications privilege, the deliberative process privilege is more easily overcome by
Congress and “disappears altogether when there is any reason to believe government misconduct
occurred.”24 Its legal source also appears to be different from the presidential communications

privilege, as it arises “primarily” from the common law,25 but may have a “constitutional
dimension.”26 Least potent are those executive privileges that arise purely from the common law,

19 See Dep’t of Justice, Office of Legal Counsel, Protective Assertion of Executive Privilege Over Unredacted Mueller
Report and Related Investigative Files, 43 Op. O.L.C. 374 (2019).
20 See 8 Op. O.L.C. 101, 116 (reasoning that “[t]he scope of executive privilege includes several related areas”); 13 Op.
O.L.C. 153, 154 (reasoning that “the executive branch's interest in keeping the information confidential” is “usually
discussed in terms of "'executive privilege’”).
21 See H. COMM. ON OVERSIGHT AND GOV’T REFORM, 110TH CONG., REP. ON PRESIDENT BUSH’S ASSERTION OF
EXECUTIVE PRIVILEGE IN RESPONSE TO THE COMMITTEE SUBPOENA TO ATTORNEY GENERAL MICHAEL B. MUKASEY 8
(Comm. Print 2008) (“The Attorney General's argument that the subpoena implicates the ‘law enforcement component’
of executive privilege is equally flawed. There is no basis to support the proposition that a law enforcement privilege,
particularly one applied to closed investigations, can shield from congressional scrutiny information that is important
for addressing congressional oversight concerns. The Attorney General did not cite a single judicial decision
recognizing this alleged privilege.”); H.R. REP. NO. 105-728, at 16 n. 43 (1998) (“As the D.C. Circuit has recently held,
the doctrine of executive privilege which arises from the constitutional separation of powers applies only to
decisionmaking of the President. Since the subject of the Committee’s subpoena is not one that does (or legally could)
involve Presidential decisionmaking, no constitutional privilege could be invoked here.”) (citations omitted).
22 United States v. Nixon, 418 U.S. 683, 710 (1974).
23 Id. at 711.
24 In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997). Given its broad scope, the deliberative process privilege is
“the most frequent form of executive privilege raised.” Id. at 737.
25 In In re Sealed Case, the D.C. Circuit determined that “the deliberative process privilege is primarily a common law
privilege,” but that “[s]ome aspects of the privilege, for example the protection accorded the mental processes of
agency officials, have roots in the constitutional separation of powers.” 121 F.3d at 745, 737 n.4. See also Protect
Democ. Project v. NSA, 10 F.4th 879, 885 (D.C. Cir. 2021) (“The deliberative process privilege is primarily a common
law privilege . . . .”).
26 Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 104 (D.D.C. 2016). The scope and source of
the law enforcement privilege is unclear, particularly when asserted in the context of congressional investigations
where committees have voiced consistent objections to its use. Congress has previously viewed the executive branch’s
position on the confidentiality of law enforcement information as a nondisclosure “policy” rather than a constitutionally
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which have generally been viewed, at least by Congress, as legally insufficient to justify
noncompliance with a congressional subpoena.27
Tracing the Judicial Evolution of the Presidential
Communications Privilege
The remainder of this report will focus on the presidential communications privilege
(Communications Privilege), its judicial development, and its application in congressional
investigations. The Communications Privilege derives implicitly from the President’s powers
under Article II and the separation of powers doctrine, and has been justified by the need to
protect the confidentiality of the President’s decisionmaking process.28 Its foundation lay in the
proposition that in making judgments and reaching decisions, the President and his advisers must
be free to candidly discuss issues, express opinions, and explore options without fear that those
deliberations will later be made public.29
Today, it is apparent that the Communications Privilege is qualified, rather than absolute, and
applies only to confidential communications made in support of official presidential
decisionmaking that directly involve the President or close presidential advisers.30 For the vast
majority of U.S. history, however, the existence and appropriate scope of the Communications
Privilege was uncertain and nearly untouched by the courts.31 Chief Justice John Marshall
referred to the confidentiality of presidential communications in Marbury v. Madison and during
the treason trial of former Vice President Aaron Burr,32 but in “neither instance [] was Marshall
forced to definitively decide whether such a presidential privilege existed and if so, in what
form.”33 In fact, the Judiciary’s involvement in addressing the Communications Privilege’s use in
resisting disclosure in the face of either judicial or legislative subpoenas did not begin in earnest

based privilege. See H. COMM. ON OVERSIGHT AND GOV’T REFORM, 110TH CONG., REP. ON PRESIDENT BUSH’S
ASSERTION OF EXECUTIVE PRIVILEGE IN RESPONSE TO THE COMMITTEE SUBPOENA TO ATTORNEY GENERAL MICHAEL B.
MUKASEy 8 (Comm. Print 2008).
27 The Supreme Court recently stated in dicta that the recipients of a congressional subpoena “have long been
understood to retain common law . . . privileges with respect to certain materials….” Trump v. Mazars USA, LLP, 140
S. Ct. 2019, 2032 (2020). This statement is in tension with the congressional practice of treating common law
privileges as discretionary and has been subject to some criticism. See CRS Report RL30240, Congressional Oversight
Manual, coordinated by Christopher M. Davis, Todd Garvey, and Ben Wilhelm at 62-3.
28 See Nixon, 418 U.S. at 705-06.
29 Id. at 708. In this sense, executive privilege is partly based on the theory that transparency can inhibit
decisionmaking.
30 See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977).
31 See, e.g., RAOUL BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH (1974) 1 (describing executive privilege
as a “myth” and a “product of the nineteenth century, fashioned by a succession of presidents who created ‘precedents’
to suit the occasion.”)
32 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 169-70 (1803) (suggesting that “[t]he intimate political relation,
subsisting between the president of the United States and the heads of departments, necessarily renders any legal
investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some
hesitation with respect to the propriety of entering into such investigation”); United States v. Burr, 25 F. Cas. 30, 37
(noting that if a letter to President Jefferson “does contain any matter which it would be imprudent to disclose, which it
is not the wish of the executive to disclose, such matter, if it be not immediately and essentially applicable to the point,
will, of course, be suppressed”). The Supreme Court addressed the state secrets privilege in United States v. Reynolds,
345 U.S. 1, 7-8 (1953) (articulating a “privilege which protects military and state secrets” that “belongs to the
Government and must be asserted by it” but “is not to be lightly invoked.”).
33 In re Sealed Case, 121 F.3d at 738.
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until the 1970s and the Administration of Richard Nixon.34 Prior to the Nixon era, the
Communications Privilege’s contours were instead left to be defined, if at all, by historical
practice and the actions and interpretations of Congress and the President.
The Nixon Era
The years during and immediately following the Nixon Administration are arguably the defining
era of the Communications Privilege’s judicial development. It was during that time period
(1972-1977) that the courts first confirmed the Communications Privilege’s existence and began
to delineate—but did not significantly develop—its application in criminal and civil proceedings,
as well as its use in response to exercises of Congress’s oversight and legislative powers.35 In
each of these contexts the courts were asked to resolve significant but unsettled questions of
constitutional law, ranging from whether the President is immune from all compulsory process to
the scope and force of presidential claims of the Communications Privilege.36
The Nixon-era judicial opinions did not occur in a legal vacuum. They were informed by the
events that were unfolding at the time, both in the White House and in Congress. In order to fully
develop the evolution of the courts’ executive privilege jurisprudence, it is therefore necessary to
place the various Nixon-era legal disputes and decisions in historical context. A chronological
narrative is also helpful in understanding another key principle of executive privilege: the
interrelatedness of the courts’ evaluation of the Communications Privilege in criminal, civil, and
congressional settings.
Watergate: Applying the Communications Privilege in the Criminal
and Congressional Setting
On June 17, 1972, in the midst of President Nixon’s reelection campaign, a group of men with
then-undiscovered connections to the Nixon campaign were arrested while breaking into the
Democratic National Committee Headquarters at the Watergate Hotel and Office Building.37 The
federal government responded with a traditional executive branch criminal investigation and
prosecution, which eventually resulted in convictions for the burglars and two Nixon campaign
aides in January 1973—just months after President Nixon won a second term in November
1972.38 Shortly after those initial convictions, and partly in response to new evidence and

34 Id. at 739-40 (“[I]t was not until the 1970s and Watergate-related lawsuits seeking access to President Nixon’s tapes
as well as other materials that the existence of the presidential privilege was definitively established as a necessary
derivation from the President’s constitutional status in a separation of powers regime.”); see also id. at 742 (“These
lawsuits, referred to generically as the Nixon cases, remain a quarter century later the leading—if not the only—
decisions on the scope of the presidential communications privilege.”).
35 See, e.g., Nixon, 418 U.S. 683, 707 (1974) (assessing the Privilege in the context of a criminal trial); Sirica, 487 F.2d
at 717 (assessing the Privilege in the context of a grand jury investigation); Senate Select, 498 F.2d at 731 (assessing
the Privilege in the context of a congressional investigation); Dellums v Powell, 561 F.2d 242, 249 (D.C. Cir. 1977)
(assessing the Privilege in the context of civil case).
36 President Nixon also asserted the Privilege in the impeachment context in response to subpoenas issued by the House
Judiciary Committee. The House did not, however, enlist the aid of the courts in order to enforce its demands for
information in that context, and instead chose to respond to the President’s refusals by adopting a specific article of
impeachment rebuking the President for his failure to comply with the committee’s subpoenas. See H. REP. NO. 93-
1305, 93rd Cong. (1974) at 206-13.
37 S. REP. NO. 93-981, 93rd Cong. (1974) at 1.
38 See JOHN J. SIRICA, TO SET THE RECORD STRAIGHT: THE BREAK-IN, THE TAPES, THE CONSPIRATORS, THE PARDON 83-
88 (1979).
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allegations that further implicated both the Nixon reelection campaign and the Nixon
Administration, the Senate established the Senate Select Committee on Presidential Campaign
Activities (Senate Watergate Committee) to investigate all “illegal, improper or unethical
activities” connected to the 1972 election.39
In the spring of 1973, with evidence of a possible cover-up by the Nixon Administration
mounting, a variety of high-level officials resigned, including Attorney General Richard
Kleindienst.40 The Senate Judiciary Committee made clear that the confirmation of President
Nixon’s nominee to replace Kleindienst, Elliot Richardson, would depend on his willingness to
appoint an independent prosecutor to oversee the expanding Watergate criminal investigation.41
Richardson promised to make the appointment, and after being confirmed, named Archibald Cox
as Special Prosecutor.42 Thus, continued investigation of the Watergate burglary and the Nixon
Administration’s potential involvement and response proceeded concurrently along two separate
tracks: an executive branch criminal investigation conducted by an independent Special
Prosecutor, and a congressional investigation launched by the Senate. Both investigations
eventually culminated in conflicts with President Nixon over executive privilege that were
eventually presented to the Judiciary for resolution.
At first, President Nixon stated that he would not use executive privilege to impede either the
criminal or congressional investigation, at least not with respect to testimony by Administration
officials.43 This position conformed to the executive branch’s long-standing view that executive
privilege should not be used to conceal wrongdoing. Consistent with this pledge, the President did
not invoke the Communications Privilege to block his current or former advisers from providing
requested testimony to either the Special Prosecutor or the Senate Watergate Committee. The
President’s approach changed, however, in the summer of 1973 after Alexander Butterfield, an
aide to the President, testified to the Watergate Committee that the Oval Office was outfitted with
a device that recorded the President’s conversations.44
Following the tapes revelation, both the Watergate Committee and the Special Prosecutor
determined that it was necessary for their own distinct investigative purposes to obtain tapes of
specific conversations between the President and his aides. The Watergate Committee sought
certain tapes through a legislative subpoena and under its broad legislative mandate, while Cox
sought them through a grand jury subpoena as part of his ongoing criminal investigation into
various Nixon officials implicated in the Watergate cover-up. On July 25, 1973, President Nixon
refused both the committee subpoena and the grand jury subpoena, concluding that “it would be
inconsistent with the public interest and with the Constitutional position of the Presidency” to
comply.45 Both the Watergate Committee and the Special Prosecutor reacted by filing suit in the

39 S. Res. 60, 93rd Cong. (1973).
40 SIRICA, supra note 38 at 114-115.
41 See Anthony Ripley, Archibald Cox Appointed Prosecutor for Watergate, N.Y. TIMES (May 19, 1973).
42 Id.
43 9 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 697 (1973) (“Considering the number of persons involved in
this case whose testimony might be subject to a claim of executive privilege, I recognize that a clear definition of that
claim has become central to the effort to arrive at the truth. Accordingly, executive privilege will not be invoked as to
any testimony concerning possible criminal conduct or discussions of possible criminal conduct, in the matters
presently under investigation, including the Watergate affair and the alleged cover-up.”).
44 James M. Naughton, Surprise Witness: Butterfield, Ex‐Aide at White House, Tells of Listening Devices, N.Y. TIMES
(July 17, 1973), https://www.nytimes.com/1973/07/17/archives/surprise-witness-butterfield-exaide-at-white-house-
tells-of.html.
45 Nixon v. Sirica, 487 F.2d 700, 705 (D.C. Cir. 1973).
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U.S. District Court for the District of Columbia (D.C. District Court) to obtain judicial
enforcement of their respective subpoenas. Both cases were in their own way unprecedented.
Grand jury subpoena enforcement cases had been filed before,46 but never to compel compliance
by a sitting President. And neither the House nor the Senate had ever filed a civil lawsuit to
enforce a subpoena, let alone one against the President.47
The President shortly thereafter explicitly stated that his July 25 letter constituted a “formal claim
of executive privilege.”48
In re Subpoena to Nixon (D.C. District Court)
The D.C. District Court, hearing the case on a nearly blank judicial slate without controlling
precedent, first addressed the President’s refusal to comply with the grand jury subpoena. In that
litigation, President Nixon’s attorneys adopted an absolutist position, arguing both that the
President was “not subject to compulsory process from the courts” and that it was the President,
and not the judiciary, who must determine whether the Communications Privilege is appropriately
invoked.49 In what is arguably the first judicial opinion directly addressing the Communications
Privilege, the court rejected both arguments and ordered the President to submit the tapes for in
camera review to determine whether the Communications Privilege was properly asserted.50 The
opinion, written by Chief Judge John Sirica, ultimately said little about the source or scope of the
President’s Privilege other than to state that despite a “need to disfavor privileges and narrow
their application as far as possible,” the court was “willing” to “recognize and give effect to an
evidentiary privilege based on the need to protect Presidential privacy” in “presidential
deliberations.”51 But, he held, it was the judiciary and not the President “that finally determines
whether [the] privilege is properly invoked.”52
Notably, Judge Sirica also distinguished between the legitimate interests underlying the
Communications Privilege and undifferentiated claims of presidential privacy. The primary policy
justification for the Communications Privilege, he reasoned, was that forced disclosure of
conversations between the President and his advisers would inhibit free and frank discussion and
impair presidential decisionmaking.53 This need to protect the President’s deliberative process
exists “for the benefit of the public, not of executives who may happen to then hold office.”54 By
contrast, the notion of personal “[p]residential privacy” on its own and disconnected from the
public interest in informed decisionmaking, he reasoned, had “no merit.”55

46 See Cobbledick v. United States, 309 U.S. 323, 327 (1940).
47 In 1928, members of a Senate special investigative committee brought suit to obtain documents associated with a
disputed Senate election, but the Court dismissed that claim on jurisdictional grounds due to a lack of Senate
authorization for the suit. Reed v. Delaware Cty. Comm., 277 U.S. 376, 389 (1928).
48 Sirica, 487 F.2d at 705.
49 In re Subpoena to Nixon, 360 F. Supp. 1, 3 (D.D.C. 1973). President Nixon went further, suggesting that “[t]he issue
in this case is nothing less than the continued existence of the Presidency as a functioning institution.” See RAOUL
BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH 348 (1974).
50 In re Subpoena to Nixon, 360 F. Supp. at 3-4.
51 Id. at 5, 11.
52 Id. at 6.
53 Id. at 5 n.8. This statement reflects the primary policy justification that would later form the basis for the Supreme
Court’s recognition of a privilege in United States v. Nixon. 418 U.S. 683, 708 (1974).
54 In re Subpoena to Nixon, 360 F. Supp. at 5.
55 Id.
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Nixon v. Sirica (D.C. Circuit)
President Nixon challenged Judge Sirica’s order in the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) where he again asserted his unqualified position that disclosure
of presidential communications was “at the sole discretion of the President.”56 In Nixon v. Sirica,
the D.C. Circuit affirmed Judge Sirica’s opinion and ordered the subpoenaed materials turned
over to the district court.57 The D.C. Circuit noted its sensitivity to the argument that “the candor
of Executive aides and functionaries would be impaired if they were persistently worried that
their advice and deliberations were later to be made public,”58 but held that the President’s
assertion of the Communications Privilege, though creating “presumptive” protections, could not
“be deemed absolute.”59 Instead, the court reasoned that whether the Communications Privilege
could ultimately be used to refuse disclosure would depend “on a weighing of the public interest
protected by the privilege against the public interests that would be served by disclosure in a
particular case.”60
To give effect to both the presumptive protections arising from a President’s assertion of the
Communications Privilege and the notion that the Communications Privilege is not absolute, the
court articulated a two-stage decisionmaking framework that would later be adopted by the
Supreme Court in subsequent cases. At stage one, the court reasoned that an adequate showing of
need was necessary to overcome the presumptive protections of the President’s assertion and
allow for a limited disclosure to the D.C. District Court for an in camera review described below.
In concluding that the grand jury had made that showing, the court acknowledged the “great
public interest in maintaining the confidentiality of conversations that take place in the
President’s performance of his official duties.”61 It held, however, that this interest “must fail in
the face of the uniquely powerful showing made by the Special Prosecutor” that “the subpoenaed
tapes contain evidence peculiarly necessary to the carrying out of this vital function—evidence
for which no effective substitute is available.”62
The court’s balancing was influenced by its conclusion that prior executive branch conduct can
undermine the President’s interest in confidentiality and, as a result, support the case for
compelled disclosure. For example, the court reasoned that Nixon’s prior statement that executive
privilege would not be asserted “presumably reflect[ed] a judgment by him that the interest in the
confidentiality of White House discussions in general is outweighed by such matters as the public
interest.”63 The court similarly viewed the public testimony given by several White House
advisers and employees as “substantially diminish[ing] the interest in maintaining the
confidentiality of conversations pertinent to Watergate.”64
Having determined that the grand jury had overcome the Communications Privilege’s
presumptive protections, stage two of the framework required in camera review by the D.C.

56 Nixon v. Sirica, 487 F.2d 700, 708 (1973).
57 Id. at 721.
58 Id. at 713.
59 Id. at 716.
60 Id. at 715-16 (“The Constitution mentions no Executive privileges, much less any absolute Executive privileges. Nor
is an absolute privilege required for workable government.”).
61 Id. at 717.
62 Id.
63 Sirica, 487 F.2d at 717.
64 Id. at 718.
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District Court which would then provide the requesting party (in this case, the grand jury) with
access to all materials “relevant” to matters within its jurisdiction, “unless the Court judges that
the public interest served by nondisclosure of particular statements or information outweighs the
need for that information demonstrated by the grand jury.”65 That assessment would be left to the
district court on remand.66
President Nixon did not appeal the D.C. Circuit’s decision in Sirica. Instead, the President first
sought a compromise with the Special Prosecutor by offering to summarize the subpoenaed
conversations in writing and allow a Democratic Senator to listen to the tapes to confirm the
summaries’ accuracy.67 Cox rejected the President’s offer. The President then sought to
implement his position outside the courts on October 20, 1973, by having Cox removed in what is
known as the Saturday Night Massacre.68 Public and congressional response to the firing of Cox
..
was so severe that Nixon was ultimately forced to comply with the court order and direct the
appointment of a new Special Prosecutor, Leon Jaworksi.
Impeachment Investigation
The start of 1974 brought with it an additional investigative layer to the Watergate affair.
Although an informal investigation had been ongoing since late 1973, in February 1974 the
House formally authorized the House Judiciary Committee to conduct an impeachment
investigation of President Nixon.69 The Senate Watergate Committee would continue its focus on
the break-in, the cover-up, and whether legislative responses were necessary, while the House
Judiciary Committee would focus on whether the President’s conduct warranted impeachment
and potential removal from office.
Senate Select Committee v. Nixon (D.C. District Court)
That same month, February 1974, the D.C. District Court issued its decision on the Senate
Watergate Committee’s subpoena for the Nixon tapes.70 Relying on Sirica, the court noted its
“duty” to balance “the public interests” in confidentiality “against the public interests that would
be served by disclosure to the Committee in this particular instance.”71 Ultimately, the court
would not enforce the Committee subpoena, not because of the President’s assertion of privilege,
but out of concern that disclosure to the Committee could threaten the Special Prosecutor’s

65 Id. at 718. At this stage, the President would have an opportunity to “present more particular claims of privilege,”
through the provision of a privilege log that contains “descriptions specific enough to identify the basis of the particular
claim or claims.” Id at 721.
66 Id.
67 See David E. Rosenbaum, Stennis Says Tapes Audit Depended on Ervin Consent, N.Y. TIMES (Oct. 21, 1973),
https://www.nytimes.com/1973/10/21/archives/stennis-says-tapes-audit-dependent-on-ervin-consent-technical.html.
68 The D.C. District Court later ruled that Cox’s firing violated Department of Justice regulations. Nader v. Bork, 366 F.
Supp. 104, 108 (D.D.C. 1973) (“The firing of Archibald Cox in the absence of a finding of extraordinary impropriety
was in clear violation of an existing Justice Department regulation having the force of law and was therefore illegal.”).
69 H. Res. 803, 93rd Cong. (1974).
70 Senate Select Comm. on Presidential Campaign Activities v. Nixon, 370 F. Supp. 521 (D.D.C. 1974). Shortly before
Cox’s removal, the District Court dismissed the Watergate Committee’s lawsuit to enforce its legislative subpoena,
holding that there was no existing statute that granted the judiciary jurisdiction over such a claim. The opinion noted,
however, that conferring jurisdiction upon the court by statute was “the prerogative of the Congress.” Congress shortly
thereafter responded by enacting a statute that explicitly conferred jurisdiction over the claim to the federal courts. See
Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 55 (D.D.C. 1973).
71 Senate Select, 370 F. Supp. at 522.
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“pending criminal prosecutions.”72 Disagreeing with the notion that criminal proceedings should
take precedence over a congressional investigation, the Committee appealed that decision.
While the Watergate Committee’s case was on appeal to the D.C. Circuit, the grand jury returned
an indictment for various Nixon campaign and Administration officials that named the President
as an unindicted co-conspirator.73 The grand jury also requested, and the court approved, the
transmission of certain evidence to the House Judiciary Committee—evidence the grand jury felt
had a “material bearing on matters within the primary jurisdiction of the Committee in its current
[impeachment] inquiry.”74 During the subsequent criminal trial of the indicted Nixon
Administration officials, which included former Attorney General John Mitchell, Special
Prosecutor Jaworski issued a trial subpoena to the President for other tapes of conversations
between the President and his advisers that were needed for evidence. It was the dispute over this
trial subpoena that would ultimately lead to the Supreme Court’s seminal decision in United
States v. Nixon.
United States v. Mitchell (D.C. District Court)
On April 30, 1974, the President publicly released redacted transcripts of some of his taped
conversations, including several conversations covered by the trial subpoena. The next day, he
asserted executive privilege and moved to quash the Special Prosecutor’s trial subpoena.75 The
D.C. District Court was again faced with a claim of Privilege, but this time in the context of a
subpoena for evidence in an ongoing criminal trial, rather than a subpoena issued as part of a
grand jury investigation. In an opinion following the principles established in Sirica, the D.C.
District Court held in United States v. Mitchell that the Special Prosecutor had made a
“demonstration of need sufficiently compelling to warrant judicial examination” of the tapes.76
The court ordered the remaining privileged tapes turned over to the court for in camera review,
but not directly to the Special Prosecutor. Both the President and the Special Prosecutor appealed
the decision directly to the Supreme Court.77
Concurrent with these developments in the criminal setting, the House Judiciary Committee
issued additional subpoenas to President Nixon throughout April and May 1974 for tapes of
specific conversations involving the President that related to the Committee’s impeachment
investigation.78 Although the President initially agreed to cooperate, on May 22, 1974, the
President concluded that “to continue providing these conversations in response to the constantly
escalating requests would constitute such a massive invasion into the confidentiality of
presidential conversations that the institution of the Presidency itself would be fatally
compromised.”79 The House Judiciary Committee’s decision on how to respond to the President’s

72 Id. at 523. The court specifically noted that the Committee had not demonstrated “a pressing need” for the tapes and,
as a result, the court was “assigning priority to the integrity of criminal justice” over the committee investigation. Id. at
524.
73 See Anthony Ripley, Jury Names Nixon a Co-conspirator But Didn’t Indict, N.Y. TIMES (June 7, 1974),
https://www.nytimes.com/1974/06/07/archives/jury-named-nixon-a-coconspirator-but-didnt-indict-st-clair-
confirms.html.
74 In re Report & Recommendation of June 5, 1972 Grand Jury etc., 370 F. Supp. 1219, 1221 (D.D.C. 1974).
75 United States v. Mitchell, 377 F. Supp. 1326, 1328 (D.D.C. 1974).
76 Id. at 1330. The court also noted that the President had “relinquish[ed] his privilege with respect to “the portions of
subpoenaed recordings with the president has caused to be reduced to transcript form and published.” Id.
77 United States v. Nixon, 418 U.S. 683, 689-90 (1974).
78 H.R. REP. NO. 93-1305, at 187-206 (1974).
79 Id.
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noncompliance would likely be influenced by a judicial opinion in the then-pending appeal in the
Senate Watergate Committee’s attempt to enforce its own subpoenas in the courts. That decision
came one day later, on May 23, 1974.
Senate Select Committee v. Nixon (D.C. Circuit)
In Senate Select Committee v. Nixon, the D.C. Circuit arguably hampered Congress’s
investigative interests by affirming the district court’s refusal to enforce the Watergate
Committee’s subpoena.80 To this day, Senate Select remains the only substantive appellate court
decision directly addressing the assertion of the Communications Privilege by a sitting President
in a congressional investigation.
The D.C. Circuit’s opinion affirmed the Communications Privilege’s qualified nature by making
clear that a President’s assertion could be overcome by a “strong showing of need by another
institution of government.”81 But, following the “staged decisional structure” adopted in Sirica,
the court found that unlike the grand jury in Sirica and the Special Prosecutor in Mitchell, the
Senate Watergate Committee had failed to make the requisite showing of need.82 The
Committee’s need was, in the court’s reasoning, “too attenuated and too tangential to its functions
to permit a judicial judgment that the President is required to comply with the Committee’s
subpoenas.”83 The court elaborated that Congress, in the exercise of its investigative powers, may
overcome the President’s presumptive privilege only when it can show that “the subpoenaed
evidence is demonstrably critical to the responsible fulfillment of the Committee’s function.”84
Notably, the court clarified that the “nature of the presidential conduct that the subpoenaed
material might reveal,” including President Nixon’s alleged criminal misconduct, was not a
significant factor in assessing whether the Communications Privilege was overcome. Instead, that
analysis depended “solely” on the “nature and appropriateness” of the Committee’s function.85
The Watergate Committee had sought to make the required showing by arguing it had a “critical”
need for the tapes to carry out two separate functions. First, under its oversight function, the
Committee argued that the tapes were necessary to “oversee the operations of the executive
branch, to investigate instances of possible corruption and malfeasance in office, and to expose
the results of its investigations to public view.”86 Second, under its legislative function, the
Committee argued that “resolution, on the basis of the subpoenaed tapes, of the conflicts in the
testimony before it ‘would aid in a determination whether legislative involvement in political
campaigns is necessary’ and ‘could help engender the public support needed for basic reforms in
our electoral system.’”87

80 Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 726 (D.C. Cir. 1974). Although
affirming the district court decision, the D.C. Circuit opinion expressly rejected the lower court’s reasoning (both in
how the court applied executive privilege and the priority it gave the criminal justice process over congressional
investigations) as not accurately reflecting the controlling principles of Sirica. Id. at 729 (“Neither the Committee’s
position nor, if we read it correctly, that of the District Court accurately reflects the doctrines of Nixon v. Sirica,
doctrines that, at least by analogy, we think controlling here.”).
81 Id. at 730.
82 Id.
83 Id. at 733.
84 Id. at 731.
85 Id.
86 Senate Select, 498 F.2d at 731.
87 Id.
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As to the oversight function, the Court held that the Select Committee failed to show the requisite
need—mainly because the House Judiciary Committee had already obtained a selection of tapes
from the Jaworski grand jury. The court reasoned that any further investigative need by the Select
Committee was therefore “merely cumulative,” as the tapes were currently in the possession of
one committee of Congress.88 With regard to the Committee’s legislative functions, the court held
that the particular content of the conversations was not essential to future legislation, as
“legislative judgments normally depend more on the predicted consequences of proposed
legislative actions . . . than on precise reconstruction of past events.”89 Any “specific legislative
decisions” faced by the Select Committee, the court found, could “responsibly be made” based on
the released transcripts.90 As such, the court’s determination that the Select Committee failed to
make the requisite showing of need appears to have been based on a pair of unique facts unlikely
to be present in more traditional investigative disputes over the Communications Privilege: first,
that copies of the tapes had been provided to the House Judiciary Committee under that
committee’s impeachment investigation; and second, that the President had publicly released
partial transcripts of the tapes.91
United States v. Nixon (Supreme Court)
One month later, on expedited appeal from Mitchell, the judiciary’s role in resolving questions of
executive privilege came to a climax in the Supreme Court’s seminal decision of United States v.
Nixon.92 The Nixon opinion, which reflected the reasoning of the judicial decisions that had come
before, similarly rejected the President’s absolutist interpretation of the Communications
Privilege.93
Nixon confirmed several of the fundamental principles that had been recognized in Sirica and
Senate Select. First, the Nixon opinion clearly recognized the existence of an implied
constitutional privilege protecting presidential communications,94 holding that the “privilege of
confidentiality of presidential communications” is “fundamental to the operation of Government
and inextricably rooted in the separation of powers” and “the supremacy of each branch within its
own assigned area of constitutional duties.”95 The Court further held that the Communications

88 Id. at 732. The court appears to have concluded that the subsequently initiated and nearly completed work of the
House Judiciary Committee had in effect preempted the Senate Committee’s efforts. Id. at 733 (“More importantly, . . .
there is no indication that the findings of the House Committee on the Judiciary and, eventually the House of
Representatives itself, are so likely to be inconclusive or long in coming that the Select Committee needs immediate
access of its own.”)
89 Id.
90 Id. at 733.
91 S. REP. NO.93-981, at 1083 (1974) (“It is clear, therefore, that the court’s decision rested, as the court observed, on
‘the peculiar circumstances of this case,’ and should not necessarily prevent legislative committees in the future from
obtaining materials relating to Presidential communications.”).
92 United States v. Nixon, 418 U.S. 683 (1974). The Nixon opinion, which was before the Court on expedited direct
appeal from the district court decision in Mitchell, was issued with some urgency. Noting the “public importance of the
issues presented and the need for their prompt resolution,” the Court issued its opinion only 16 days after oral
argument.
93 Id. at 706 (“[N]either 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.”).
94 Id. at 711 (“Nowhere in the Constitution … 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.”)
95 Id. at 708, 705.
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Privilege, however, must not be “expansively construed” as it, like other privileges, is “in
derogation of the search for truth.”96
Second, the Court explicitly reaffirmed its role as the “ultimate interpreter of the Constitution”
and the privileges emanating from it, concluding that it was the Court, and not the President, that
must have the final say on the Communications Privilege.97
Third, as first articulated by Judge Sirica, the Court held that the underlying justification for the
Communications Privilege related to the “public interest” in the integrity of presidential
decisionmaking.98 “Human experience,” the Court reasoned, “teaches that those who expect
public dissemination of their remarks may well temper candor with a concern for appearances and
for their own interests to the detriment of the decisionmaking process.”99 The Court added that
there is a
public interest in candid, objective, and even blunt or harsh opinions in Presidential
decisionmaking. A President and those who assist him must be free to explore alternatives
in the process of shaping policies and making decisions and to do so in a way many would
be unwilling to express except privately.100
As such, the Court held that “[t]he President’s need for complete candor and objectivity from
advisers calls for great deference from the courts” and, using language from Sirica, justified a
“presumptive privilege for Presidential communications” made in “the exercise of Art. II
powers.”101
Fourth, the Court emphasized that the implied constitutional Privilege was not “absolute” or
“unqualified,” at least not when founded upon a “generalized” need for confidentiality in
“nonmilitary and nondiplomatic discussions.”102 Instead, when the Communications Privilege is
invoked in response to a judicial subpoena, a “confrontation with other values arise[s]” requiring
the courts to “resolve those competing interests in a manner that preserves the essential functions
of each branch.”103 The President’s interest, therefore, would need to be balanced against the
“fundamental and comprehensive” need to “develop all relevant facts” and evidence in a criminal
case.104 In weighing these interests, the Court held the following:
We cannot conclude that advisers will be moved to temper the candor of their remarks by
the infrequent occasions of disclosure because of the possibility that such conversations
will be called for in the context of a criminal prosecution. On the other hand, the allowance
of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would
cut deeply into the guarantee of due process of law and gravely impair the basic functions
of the courts.

96 Id. at 709-10 (“These and other interests are recognized in law by privileges against forced disclosure, established in
the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man's
evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”).
97 Id. at 704.
98 Nixon, 418 U.S. at 705.
99 Id. at 705.
100 Id. at 708.
101 Id. at 706.
102 Id. at 707.
103 Id.
104 Nixon, 418 U.S. at 711-12 (“In this case we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President’s responsibilities against the inroads of such a privilege
on the fair administration of criminal justice.”).
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As a result, the Communications Privilege, when based “only on a generalized interest in
confidentiality,” “cannot prevail over the fundamental demands of … the fair administration of
justice” and therefore “must yield to the demonstrated, specific need for evidence in a pending
criminal trial.”105
Finally, Nixon approved the same “staged decisional structure” applied by the D.C. Circuit in
Sirica and Senate Select. If a President determines that “compliance with a subpoena would be
injurious to the public interest he may properly…invoke a claim of privilege.”106 Such an
invocation creates “presumptive” protections for the subpoenaed material. As a result of these
initial protections, a court may only order in camera review when the party has “made a sufficient
showing to rebut the presumption.”107 Once the presumptively privileged material is reviewed in
camera, a court may then direct the further disclosure of all “relevant” and “admissible”
information.108
The Nixon opinion made two additional points worth noting. First, the Court repeatedly suggested
that its analysis may have been different if instead of a generalized interest in the confidentiality
of his communications, the President had asserted a claim of “military or diplomatic secrets.”109
“As to these areas of Art. II duties the courts have traditionally shown the utmost deference to
Presidential responsibilities.”110 Second, the Court explicitly disclaimed any attempt to assess the
application of the Communications Privilege in a congressional investigation: “we are not here
concerned with the balance between the President’s generalized interest in confidentiality ... and
congressional demands for information.”111
Shortly after the Supreme Court’s opinion in Nixon, the House Judiciary Committee voted to
recommend articles of impeachment against President Nixon for obstruction of justice, abuse of
power, and contempt of Congress for his refusal to comply with congressional subpoenas.112 On
August 9, 1974, before the full House considered the articles of impeachment but after
determining that he had lost support in Congress and would not survive impeachment, President
Nixon resigned.
After Nixon’s Resignation: Applying the Communications
Privilege in the Civil and Legislative Setting
Nixon’s resignation did not end his use of executive privilege in the courts.

105 Id. at 713.
106 Id.
107 Id. at 714.
108 During that review (at least when the Privilege is asserted in response to a criminal trial subpoena) a court must
distinguish between material that is both “probably admissible in evidence and relevant” and that which is not. Id. at
714. The latter material must be “restored to its privileged status” and “accorded that high degree of respect due the
President of the United States,” while the former would be provided to the requesting party. Id. at 714-16.
109 Id. at 710.
110 Id. at 710.
111 Id. at 712 n.19.
112 The contempt of Congress allegation was based on the President’s failure to comply with subpoenas issued by the
House Judiciary committee as part of its impeachment investigation. H.R. REP. NO 93-1305 at 4 (1974).
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Dellums v. Powell (D.C. Circuit)
In January 1977, the D.C. Circuit considered the application of the now former-President’s claim
of executive privilege to prevent disclosure of his communications in a civil case.113 Dellums v.
Powell involved a class action suit alleging that Nixon Administration officials had violated
plaintiffs’ constitutional rights during arrests made at the 1971 “May Day” demonstrations
protesting American involvement in Vietnam.114 As part of discovery in that case, a subpoena was
issued to the White House Counsel’s office for tapes and transcripts of Oval Office conversations
between Nixon and the defendants. Nixon intervened to have the subpoena quashed, arguing that
the materials sought were protected by the Communications Privilege which, he argued, was
“absolute in the context of civil litigation.”115
As in Sirica, Senate Select, and the Supreme Court’s opinion in Nixon, the Dellums opinion again
rejected the former President’s absolutist position and held that the Communications Privilege,
even when invoked in the civil context, would be subject to a “balancing approach.”116 Like the
need for disclosure in the criminal context, the Dellums opinion determined that “there is also a
strong constitutional value in the need for disclosure in order to provide the kind of enforcement
of constitutional rights that is presented by a civil action for damages.”117 Thus, when a party in a
civil case can show a “substantial” and “specific” need for the information sought that is “beyond
the routine desire of every party to discover relevant information to assist in the preparation of a
case,” the party can “overcome the rebuttable presumption of privilege of a former
President….”118
Despite finding that the plaintiff had shown a need sufficient to overcome Nixon’s presumptive
privilege in this particular case, the Dellums opinion suggested that a civil litigant would not
typically overcome the Communications Privilege. Referencing the underlying justification for
the Communications Privilege, the court twice noted that any “fear that the candor of Presidential
advisers will be imperiled” was misplaced because of the “infrequent occasions” in which a party
in a civil case could make the requisite showing of need.119 Moreover, to further protect the
former President’s confidentiality interests, the court clarified that disclosure based on “the
potential needs of litigation” does not mean that a court must also permit disclosure to the
public.120 As a result, the court determined that Nixon was entitled to a temporary protective order
preventing further disclosure of his materials.121

113 Dellums v. Powell, 561 F.2d 242 (D.C. Cir. 1977). See also, Sun Oil Co. v. United States, 514 F.2d 1020, 1021 (Ct.
Cl. 1975) (addressing the Privilege in the civil context).
114 Id. at 244 (alleging violations of the First and Fifth Amendments).
115 Id.
116 Id. at 246 (noting the need for a “particularized analysis rather than mechanistic formalism”) (quoting Nixon v.
Adm’r of Gen. Servs., 408 F. Supp. 321, 342 (D.D.C. 1976)).
117 Id. at 247.
118 Id. at 249. The plaintiff’s need, which the court found to be sufficient to overcome an assertion of Privilege by a
former President, was shown through a combination of factors, including the “substantial violations of constitutional
rights sought to be vindicated,” the existence of no “alternative means” to obtain “comparable” discovery, and
“sufficient evidentiary substantiation [of high-level meetings held in preparation of the May Day demonstrations] to
avoid the inference that the demand reflects mere harassment.” Id. at 247.
119 Dellums, 561 F.2d at 246, 47. See also Cheney, 542 U.S. at 384 (“The need for information for use in civil cases,
while far from negligible does not share the urgency or significance of the criminal subpoena requests in Nixon.”)
120 Id. at 249.
121 The Dellums litigation continued into the 1980s. See Dellums v. Powell, 642 F.2d 1351 (D.C. Cir. 1980).
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The court also made clear that its analysis applied to assertions by a former President, noting that
“[i]t is of cardinal significance, in the controversy now before this court, that the claim of
privilege is being urged solely by a former president, and there has been no assertion of privilege
by an incumbent president, whose appearance had a distinctly different stance.”122 The Dellums
opinion reasoned—and, as discussed below, the Supreme Court would later confirm—Privilege
assertions by a former President should be given less weight than those made by the
incumbent.123
Nixon v. Administrator of General Services (Supreme Court)
In June 1977, the Supreme Court again considered the nature of executive privilege in Nixon v.
Administrator of General Services (Nixon II).124 In that case, former President Nixon challenged
the Presidential Recordings and Materials Preservation Act, a statute that nullified a contract that
gave Nixon control over his own presidential records. The Act instead established a process to
secure and preserve his records with a government agency.125 Along with other claims, Nixon
argued that provisions of the law permitting the screening and cataloguing of presidential
materials by executive branch archivists impermissibly infringed on his Privilege. Nixon II was
therefore distinct from cases like Nixon I, Sirica, Senate Select, and Dellums because the
Communications Privilege was being invoked to prevent a limited disclosure within the executive
branch pursuant to a statutory provision, rather than disclosure outside the executive branch
pursuant to a subpoena.
The Court rejected former President Nixon’s position, holding that the statutory arrangement for
preservation of the President’s records worked only a “very limited intrusion” into the President’s
confidentiality interests, especially given that the law built in safeguards to prevent the public
disclosure of protected materials.126 Like the previous cases, the Court engaged in a balancing
test, evaluating whether the public interest justified such an intrusion, ultimately holding that it
did. Congress had acted, the Court determined, based on a variety of “important objectives,”
including to “preserve the materials for legitimate historical and governmental purposes”;
“restore public confidence in our political processes by preserving the materials as a source for
facilitating a full airing of the events leading to appellant’s resignation”; and based on its “need to
understand how those political processes had in fact operated in order to gauge the necessity for
remedial legislation.”127
The Court’s view of the severity of the intrusion appears to have been colored by the fact that the
claim was being made by a former President.128 Although recognizing that the Communications
Privilege “survives the individual President’s tenure” and thus can be invoked by former
Presidents to protect covered communications occurring while in office, the Court nonetheless

122 Dellums, 561 F. 2d at 247.
123 Id. at 245. (“Assuming arguendo a former President may present a claim of presidential privilege, we agree with the
District Court both that it is entitled to lesser weight than that assigned the privilege asserted by an incumbent
President, and that it has been overcome in the present case by plaintiffs’ showing.”).
124 Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977) [hereinafter Nixon II].
125 Id. at 430-33.
126 Id. 451 (noting a “consistent historical practice” in which archivists “have performed the identical task in each of the
Presidential libraries without any suggestion that such activity has in any way interfered with executive
confidentiality”).
127 Id. at 452-54.
128 See “The Communications Privilege and Former Presidents” infra.
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noted that the President’s interest in confidentiality is “subject to erosion over time after an
administration leaves office.”129
Nixon II also provided the Court’s clearest explanation of the types of communications covered
by the Communications Privilege. Interpreting Nixon, the Court held that the “the privilege is
limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and
made ‘in the process of shaping policies and making decisions.’”130 This passage reflects the
fundamental principle that the Communications Privilege does not act as a generalized safeguard
for “Presidential privacy,” but instead protects the public interest in effective and deliberative
presidential decisionmaking. As such, the Communications Privilege applies not to all
presidential communications, but only those that bear a relationship to a presidential decision.
Nixon II marked the end of President Nixon’s lengthy and largely unsuccessful legal battles over
the release of his communications. But the importance of the Nixon-era cases transcends those
materials. The cases established the fundamental characteristics of the Communications Privilege:
(1) there is a qualified constitutional privilege that provides presumptive protections to
confidential communications made to assist presidential decisionmaking; (2) the Communications
Privilege can be invoked to resist disclosure of covered communications in various contexts; and
(3) the Communications Privilege is not absolute, and can be overcome when the party seeking
the information can articulate a sufficient showing of need.
Post-Nixon: Lower Courts Filling in the Gaps
Judicial decisions addressing presidential assertions of the Communications Privilege since the
Nixon era have been relatively rare.131 Indeed, while executive privilege disputes between
Congress and the executive branch have arisen in nearly every subsequent Administration, no
federal appellate court has directly addressed the merits of a claim of Privilege by a sitting
President in the congressional investigation context since Senate Select.132 There have, however,
been a handful of judicial opinions in other contexts (including under the Freedom of Information
Act [FOIA] and in grand jury investigations) that provide additional specificity to the scope and
boundaries of the Communications Privilege and may inform its application in the congressional
setting.

129 Nixon II, 433 U.S. at 451.
130 Id. at 449 (citations omitted). As such, it was only a “small fraction” of Nixon’s complete collection of presidential
records that would be covered by the Privilege. Id. at 454.
131 There have been a number of cases involving the Privilege that have arisen from FOIA. See e.g., Protect Democracy
Project, Inc. v. NSA, 10 F.4th 879 (D.C. Cir. 2021); Judicial Watch, Inc. v. DOD, 913 F.3d 1106 (D.C. Cir. 2019). One
reason these cases may be more prevalent than in other contexts is the fact that under FOIA, the Privilege need not be
asserted by the President, and can be asserted by his subordinates. See Leopold v. United States DOJ, 487 F. Supp. 3d
1, 16 (D.D.C. 2020) (“Courts in this district have routinely concluded that it is not required that the President
personally invoke the presidential communications privilege for the privilege to apply under Exemption 5 in FOIA
cases.”).
132 There have, however, been federal judicial decisions addressing related conflicts such as access to national security
information, see United States v. AT&T Co., 567 F.2d 121 (D.C. Cir. 1977), absolute testimonial immunity for
presidential advisers, see Comm. on the Judiciary v. McGahn, 968 F.3d 755 (D.C. Cir. 2020), the deliberative process
privilege, see Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 104, 107 (D.D.C. 2016), and
executive privilege claims by former Presidents, see Trump v. Thompson, 20 F. 4th 10 (D.C. Cir. 2021) cert. denied
142 S. Ct. 1350. (2022). See generally, CRS Report R45653, Congressional Subpoenas: Enforcing Executive Branch
Compliance, by Todd Garvey; CRS Testimony TE10064, Civil Enforcement of Congressional Authorities, by Todd
Garvey.
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Elaborating on the Communications Privilege’s Scope:
Communications Not Involving the President
Because the Nixon-era cases focused on recordings of conversations between the President and
his advisers, those opinions provided little insight into whether the Communications Privilege
applies to executive branch communications that do not directly involve the President. This
question has been addressed by the D.C. Circuit. In a series of cases, that court has built on the
Nixon-era cases to hold that the Communications Privilege protects not only the direct
communications of the President, but also certain communications made for purposes of advising
the President.
Association of American Physicians & Surgeons v. Clinton (D.C. Circuit)
The D.C. Circuit considered communications by presidential advisers somewhat indirectly in a
1993 case, Association of American Physicians & Surgeons v. Clinton (AAPS).133 That case arose
in the context of the Federal Advisory Committee Act (FACA), and, in particular, whether that
law’s disclosure requirements applied to the President’s Task Force on National Health Care
Reform— a committee tasked with advising the President on possible health care reform
legislation.134
The AAPS opinion did not refer to the Communications Privilege by name but relied on Nixon
and Nixon II to conclude that because President Clinton had a “great need to receive advice
confidentially,” FACA and its transparency requirements should not be interpreted to apply to the
Task Force.135 To hold otherwise, the court held, would “interfere[] with a President’s ability to
seek advice” and raise “Article II concerns.”136 The fact that the President did not participate in
the Task Force’s deliberations did not limit the application of the Communications Privilege.
According to the D.C. Circuit, the President’s “Article II right to confidential communications
attaches not only to direct communications with the President, but also to discussions between his
senior advisers,” at least when those discussions involve “advice they secretly will render to the
President.”137 As a result, the D.C. Circuit decided that those with “operational proximity” to the
President that are “directly reporting and advising the President must have confidentiality at each
stage in the formulation of advice to him.”138
In re Sealed Case (Espy) (D.C. Circuit)
Four years after AAPS, and nearly 20 years to the day after Nixon II, the D.C. Circuit issued what
is the most thorough opinion addressing the Communications Privilege since the Nixon era. In In
re Sealed Case (Espy) the circuit court began to fill in some of the gaps left by Nixon I and Nixon
II, especially as to communications that do not directly involve the President. Espy arose from a
grand jury subpoena issued as part of an Independent Counsel investigation into allegations that a
former Secretary of Agriculture in the Clinton Administration, Mike Espy, accepted improper

133 Ass’n of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993).
134 Id. at 901-02. The Task Force consisted of various government officials and was chaired by the First Lady.
135 Id. at 909.
136 Id. at 910.
137 Id. at 909-10 (emphasis added) (“Certainly Department Secretaries and White House aides must be able to hold
confidential meetings to discuss advice they secretly will render to the President.”).
138 Id. at 910.
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gifts.139 The grand jury was seeking documents in the possession of the White House Counsel’s
office related to that office’s earlier investigation into Espy, including various internal documents
used by the office in drafting its final report.140 Notably, the President had not actually viewed any
of the contested documents.
The court was squarely faced with whether the Communications Privilege protects only
communications directly involving the President or also extends further to cover communications
by other executive branch officials that were made for purposes of advising the President, but
never made to the President. The court acknowledged that there are “strong arguments” in favor
of restricting the Communications Privilege to only those communications directly involving the
President.141 Ultimately, however, the court held that because of “the President’s dependence on
presidential advisers” a “limited extension” of the Communications Privilege to “communications
made by presidential advisers [and their staffs] in the course of preparing advice for the
President” was necessary to ensure that the President retained “access to candid and informed
advice.”142 To hold otherwise, the court reasoned, would “impede the effective functioning of the
presidency” in violation of the separation of powers.143
The court defined the Communications Privilege’s scope as follows:
We believe therefore that the public interest is best served by holding that communications
made by presidential advisers in the course of preparing advice for the President come
under the presidential communications privilege, even when these communications are not
made directly to the President. Given the need to provide sufficient elbow room for advisers
to obtain information from all knowledgeable sources, the privilege must apply both to
communications which these advisers solicited and received from others as well as those
they authored themselves. The privilege must also extend to communications authored or
received in response to a solicitation by members of a presidential adviser’s staff, since in
many instances advisers must rely on their staff to investigate an issue and formulate the
advice to be given to the President.144
The court did not explicitly define who would qualify as a “presidential adviser,” other than to
say that the White House counsel was one such official. It added, however, that “not every person
who plays a role in the development of presidential advice . . . can qualify for the privilege. In
particular, the privilege should not extend to staff outside the White House in executive branch
agencies.”145
While extending the Communications Privilege beyond conversations directly involving the
President, the court also reaffirmed existing restrictions on the Communications Privilege’s
scope.146 First, the court held that the Communications Privilege “only applies to communications
that these advisers and their staff author or solicit and receive in the course of performing their

139 In re Sealed Case, 121 F.3d 729, 734-36 (D.C. Cir. 1997).
140 Id. at 735.
141 Id. at 748.
142 Id. at 749-50.
143 Id at 751.
144 Id. at 751-52. With regard to member of an “adviser’s staff” the Privilege covers only those “who have broad and
significant responsibility for investigating and formulating the advice to be given the President on the particular matter
to which the communications relate.” Id. at 752.
145 Id.
146 Id. (noting that the Privilege should be interpreted “as narrowly as is consistent with ensuring that the confidentiality
of the President’s decision-making process is adequately protected”).
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function of advising the President on official government matters.”147 Thus, the Communications
Privilege applies only in relation to advice rendered for purposes of presidential decisions, and
“should never serve as a means of shielding information regarding governmental operations that
do not call ultimately for direct decision-making by the President.”148 Second, the court reiterated
that the Communications Privilege is “at all times, a qualified one,” meaning that even protected
communications do not “become permanently shielded,” but “remain available upon a sufficient
showing of need.”149
The Espy opinion also explored what constitutes a “sufficient showing of need,” at least in the
realm of criminal cases. For either a criminal trial subpoena or a grand jury subpoena, the court
reasoned that the “balancing methodology” governing whether an assertion of the
Communications Privilege is overcome contains two key “components.”150 First, a party must
demonstrate that the subpoenaed material “likely contains important evidence.”151 Second, the
party must show that the evidence is not “practically available” through “due diligence” from
another source.152
Finally, as the Supreme Court did in Nixon, the court again disclaimed that its holding had any
application to disputes between Congress and the executive branch, a context the court believed
“implicate[d] different constitutional considerations.”153 As stated by the court:
[W]e underscore our opinion should not be read as in any way affecting the scope of the
privilege in the congressional-executive context, the arena where conflict over the privilege
of confidentiality arises most frequently. The President’s ability to withhold information
from Congress implicates different constitutional considerations than the President's ability
to withhold evidence in judicial proceedings. Our determination of how far down into the
executive branch the presidential communications privilege goes is limited to the context
before us, namely where information generated by close presidential advisers is sought for
use in a judicial proceeding, and we take no position on how the institutional needs of
Congress and the President should be balanced.154
Espy therefore explicitly left open the question of whether its extension of the Communications
Privilege to communications by presidential advisers that do not directly involve the President
applies when the Communications Privilege is asserted in the face of a congressional subpoena.
Judicial Watch Inc. v. DOJ (D.C. Circuit)
Espy extended the protections of the Communications Privilege to a class of communications
made by subordinate executive officials—what Espy referred to as “immediate White House
advisers” or “close presidential advisers”—even when those communications do not involve, or

147 Id.
148 Id.
149 Id. at 751.
150 Id. at 753-54.
151 Id. at 754 (“The first component, likelihood of containing important evidence, means that the evidence sought must
be directly relevant to issues that are expected to be central to the trial.”).
152 Id. at 755 (“The second component, unavailability, reflects Nixon's insistence that privileged presidential
communications should not be treated as just another source of information.”).
153 Id. at 753.
154 Id.
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are not received by, the President.155 That expansion, however, was soon clarified in the 2004
decision of Judicial Watch Inc. v. DOJ.156
Judicial Watch involved the application of the Communications Privilege to a FOIA request for
pardon documents created by the Department of Justice (DOJ) Pardon Attorney, but never
provided to the President or any official in the White House.157 The government’s position was
that the Communications Privilege applied to all documents authored by any executive branch
official made in the course of preparing advice to the President. The court rejected that argument,
holding that because “the demands of the privilege become more attenuated the further away the
advisers are from the President operationally,” agency officials, including the Pardon Attorney,
are not in the class of presidential advisers whose communications could be covered under Espy
if never “solicited or received” by the White House.158
In distinguishing between those executive officials who qualify as “immediate White House
advisers” for purposes of Espy and those who do not, the court adopted a relatively formalist
approach. The line drawn appears to be dependent on where the official falls on the executive
branch organizational chart.159 The court stressed the role played by the “organizational structure
of presidential decisionnmaking” in delineating the outer confines of the Communications
Privilege and suggested that Espy’s extension of the Communications Privilege applied only to
those within the Office of the President.160 “Communications never received by the President or
his Office,” the court stated, “are unlikely to ‘be revelatory of his deliberations.’”161 Applying this
standard, the court held that the Pardon Attorney, the Attorney General, and the Deputy Attorney
General were not presidential advisers for purposes of Espy, and thus their communications (even
those that relate to presidential decisionmaking) could only be covered by the Communications
Privilege if actually solicited and received by the President or an adviser within the Office of the
President.162
Espy and Judicial Watch remain the leading post-Nixon appellate cases on the Communications
Privilege. Under their holdings, it would appear that in the D.C. Circuit the Communications
Privilege applies to two general categories of communications relating to official163 presidential
decisionmaking:
1. communications directly involving the President; and

155 Id. at 752.
156 Judicial Watch Inc. v. DOJ, 365 F.3d 1108 (D.C. Cir. 2004).
157 Id. at 1117.
158 Id. at 1115.
159 Id. at 1122-23.
160 Id. at 1116-17 1123 (“Further extension of the privilege to internal Justice Department documents that never make
their way to the Office of the President ... is unprecedented and unwarranted.”); id. at 1120 (noting that the Pardon
Attorney’s “role contrasts with that of the key White House advisers in the Office of the President who directly advise
the President....The White House Counsel, in the Office of the President, who enjoys close proximity to the President,
is one such key adviser; the Pardon Attorney, in the Justice Department, who is at least twice removed from the
President, is not”).
161 Id. at 1117.
162 Id. at 1124.
163 See H.R. REP. NO. 117-200 (2021) at 17 (“The law is clear that executive privilege does not extend to discussions
relating to non-governmental business....”).
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2. communications authored by or solicited and received by the President’s closest
advisers or their staff for purposes of preparing advice to the President.164
The Communications Privilege does not protect other executive branch communications—for
example, internal agency communications—that are not submitted to the White House, even if
made for the purpose of eventually advising the President.165
Cheney v. United States District Court: The
Communications Privilege and the Separation of
Powers
One month after Judicial Watch, the Supreme Court issued Cheney v. United States District
Court—the only other Supreme Court opinion to directly address the Communications Privilege
outside of Nixon I and Nixon II.166 Cheney is notable not only because it provides the Court’s
most recent (though minimal) discussion of the Communications Privilege, but also for
reaffirming distinctions first articulated in the Nixon-era cases between civil and criminal
proceedings and for expounding on the relationship between the Communications Privilege and
the separation of powers.
The Cheney decision interacted with the Communications Privilege in a complicated procedural
posture, and for this reason the implications of the decision to more traditional scenarios,
especially to the congressional context, are difficult to discern. In Cheney, a federal district court
had entered orders in a FACA lawsuit allowing discovery of documents relating to the structure
and operation of the National Energy Policy Development Group (NEPDG), a task force chaired
by the Vice President and established to give policy recommendations on energy issues to the
President.167 The George W. Bush Administration, though not asserting executive privilege,
challenged that discovery order on the ground that it represented a “substantial intrusion[] on the
process by which those in closest operational proximity to the President advise the President” in
violation of the separation of powers.168 The district court and the D.C. Circuit rejected the
Administration’s arguments, mainly because the Administration had another means to protect its
interests; it could assert executive privilege in response to the civil discovery subpoena.169
The Supreme Court reversed, holding that when a lower court has allowed “unnecessarily broad”
discovery, reviewing courts have authority to “explore other avenues, short of forcing the

164 Citing Espy, Judicial Watch described these qualifying officials as having “broad and significant responsibility for
investigating and formulating the advice to be given the President.” Id. at 1114. There was also a suggestion in Judicial
Watch that in order to be covered by the Privilege, a communication must relate to a “quintessential” and “non-
delegable duty of the President under Article II....” Id. at 1123, 1115. While this may remain a possible interpretation of
Judicial Watch, various district court decisions have explicitly rejected that view. See Cause of Action Inst. v. Dep’t of
Commerce, 513 F. Supp. 3d 116, 126 (D.D.C. 2021) (“Courts in this district have therefore consistently refused to
narrow the scope of the privilege to only communications relating to the President's exercise of core Article II
powers.”).
165 Judicial Watch, 365 F.3d at 1112 (noting that “internal agency documents that are not ‘solicited and received’ by the
President or his Office are instead protected against disclosure, if at all, by the deliberative process privilege”).
166 Cheney v. United States Dist. Court, 542 U.S. 367, 383-91 (2004).
167 Id. at 376.
168 Id. at 381. That action was in the form of mandamus, which among other things requires a party to show that there is
“no other adequate means to attain the relief” desired. Id. at 403.
169 Id. at 376-77.
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Executive to invoke privilege.”170 The Court reasoned that to require the executive branch to
assert the Communications Privilege in such a scenario would ignore the “weighty separation-of-
powers objections raised in the case,” because “[o]nce executive privilege is asserted, coequal
branches of the Government are set on a collision course.”171 The Court determined that the lower
courts had “labored under the mistaken assumption that the assertion of executive privilege is a
necessary precondition to the Government’s separation-of-powers objections.”172 Cheney,
therefore, appears to suggest that there are separation of powers concerns associated with
executive confidentiality issues that attach even before executive privilege is asserted.173
Cheney also reaffirmed the principle that the confidentiality interests associated with the
Communications Privilege are weighed differently in different types of proceedings. In fact, the
nature of the proceeding, whether civil or criminal, appears to affect both sides of the judicially
developed balancing test. As for the requesting party, the Court held that “[t]he need for
information for use in civil cases, while far from negligible, does not share the urgency or
significance of [a] criminal subpoena,” where the need for the information “is much weightier.”174
As for the President’s interest, the court viewed the potential for a civil subpoena to disrupt the
functioning of the executive branch as far greater than a criminal subpoena. In the criminal
context, “there are various constraints ... to filter out insubstantial legal claims,” but “there are no
analogous checks in the civil discovery process.”175 Like past cases, however, Cheney did not
mention how a congressional proceeding relates to either civil or criminal proceedings.176
The Communications Privilege and Former
Presidents
In Nixon II, the Supreme Court determined that the Communications Privilege continues to
protect presidential communications after the conclusion of the Administration within which the
communication occurred and may be asserted by the former President.177 As described above, the
Court found that a former President may “legitimately” assert the Communications Privilege to
prevent disclosure of his official records after he has left office.178 The Court reasoned that the

170 Id. at 390.
171 Id. at 391, 389.
172 Cheney, 542 U.S. at 391.
173 Id. at 385 (noting that “special considerations control when the Executive Branch’s interests in maintaining the
autonomy of its office and safeguarding the confidentiality of its communications are implicated.”). See also, Karnoski
v. Trump, 926 F.3d 1180, 1205-06 (9th Cir. 2019).
174 Cheney, 542 U.S. at 384.
175 Id. at 386 (noting that in the criminal system decisions are made by a “publicly accountable prosecutor subject to
budgetary considerations” and subject to the “responsible exercise of prosecutorial discretion”).
176 The Supreme Court did appear to draw a distinction between the criminal process and the legislative process in
Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2036 (2020) (“Unlike in criminal proceedings, where ‘[t]he very
integrity of the judicial system’ would be undermined without ‘full disclosure of all the facts,’ efforts to craft
legislation involve predictive policy judgments that are ‘not hamper[ed] . . . in quite the same way’ when every scrap of
potentially relevant evidence is not available. While we certainly recognize Congress’s important interests in obtaining
information through appropriate inquiries, those interests are not sufficiently powerful to justify access to the
President’s personal papers when other sources could provide Congress the information it needs.”) (citations omitted).
177 Nixon II, 433 U.S. at 446-49.
178 Id. at 449.
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confidentiality necessary to ensure the free exchange of ideas between the President and his
advisers while the President is in office
cannot be measured by the few months or years between the submission of the information
and the end of the President’s tenure; the privilege is not for the benefit of the President as
an individual, but for the benefit of the Republic. Therefore the privilege survives the
individual President’s tenure.179
The Court’s determination appears to have rested on the reasoning that the general purpose of the
Communications Privilege—ensuring the provision of frank advice to the President—could be
threatened or undermined no matter when the disclosure of the covered communications occurs.
Nixon II distinguished former Presidents from incumbents in three important ways. First, the
Court explicitly stated that “to the extent that the privilege serves as a shield for executive
officials against burdensome requests for information which might interfere with the proper
performance of their duties, a former President is in less need of it than an incumbent.”180 Second,
the Court concluded that the “expectation of the confidentiality of executive communications” is
“subject to erosion over time after an administration leaves office.”181 Thus, the strength of a
former President’s Communications Privilege claim appears to dwindle as time passes.
Third and perhaps most importantly, the Court determined that because only the sitting President
is “charged with performance of executive duty under the Constitution,” he is “in the best
position to assess the present and future needs of the executive branch, and to support invocation
of the privilege accordingly.”182 In Nixon II, the fact that President Carter—the sitting President at
the time—did not support former President Nixon’s privilege claim “detract[ed] from the weight
of” Nixon’s assertion.183 In the Court’s view, it is the incumbent President who is better situated
to make determinations about the need for executive confidentiality, because it is the incumbent
President who may suffer the harm that the Communications Privilege purports to protect against
if privileged documents were disclosed (namely that current advisers would be dissuaded from
giving the incumbent President candid advice).184 As a result, when the incumbent President does
not support a former President’s privilege claim, the strength of the claim declines.
This principle was also seen in Dellums—decided just before Nixon II. There, the court directly
addressed a privilege claim by a former President that was not supported by the incumbent
President. The court concluded that “the significance of the assertion by a former President is
diminished when the succeeding president does not assert that the document is of the kind whose
nondisclosure is necessary to the protection of the presidential office and its ongoing
operation.”185 Lack of support from the incumbent does not necessarily defeat the former
President’s claim, the D.C. Circuit reasoned, but was of “cardinal significance” in considering
“whether the claim is overcome by a showing of other need....”186 Dellums and Nixon II,
therefore, made apparent that while a former President can invoke the presidential
communications privilege, the strength of that claim—and the likelihood that the asserted interest

179 Id. (citations omitted).
180 Id. at 448.
181 Id. at 451.
182 Id. at 449.
183 Nixon II, 433 U.S. at 449.
184 Id.
185 Dellums v. Powell, 561 F.2d 242, 248 (D.C. Cir. 1977).
186 Id. at 247.
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in confidentiality will succumb to the need shown by the party seeking the documents—is heavily
influenced by the position of the current President.
The importance of the incumbent’s concurrence to a privilege claim by a former President was
recently reaffirmed in Trump v. Thompson.187 Thompson arose from the inquiry conducted by the
House Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Select
Committee). As part of its investigation, the Select Committee requested that the National
Archives and Records Administration (NARA) produce relevant presidential records from the
former Trump Administration pursuant to the Presidential Records Act (PRA).188 The request
sought various categories of White House communications and documents created on or around
January 6, 2021. Under the PRA, if any congressional committee requests a presidential record on
a “matter within its jurisdiction” that is “needed for the conduct of its business and that is not
otherwise available,” the National Archives “shall” make the record available.189 However,
consistent with principles established in Nixon and Nixon II, the PRA also preserves the right of
both current and former Presidents to assert privilege claims by providing that disclosure by
NARA is “subject to any rights, defenses, or privileges which the United States or any agency or
person may invoke.”190
Shortly thereafter, President Biden determined that under the “unique and extraordinary
circumstances” and because of Congress’s “compelling need” to understand the “horrific events”
of January 6, asserting executive privilege over the requested documents would not be “in the
best interests of the United States.”191 Former President Trump disagreed, and notified the
Archivist that he was asserting the Communications Privilege. After President Biden clarified that
he would “not uphold the former President’s assertion of Privilege,” former President Trump filed
suit in federal district court to block NARA from disclosing privileged documents to the Select
Committee.192
The D.C. District Court in Thompson viewed the case as “a dispute between a former and
incumbent President.”193 Citing to Nixon II, the court stated that because the incumbent President
is “best suited” to identify and determine the best interests of the executive branch, former
President Trump’s Privilege claim was “outweighed by President Biden’s decision not to uphold
the privilege.”194 Moreover, the court reasoned that to side with the former President would not
only second guess the sitting President’s judgment, but also the legislative branch’s judgment—
for both President Biden and the House agreed that the requested documents should be
disclosed.195
The D.C. Circuit affirmed the district court decision on appeal. The court acknowledged, with
reference to Nixon II, that there was “no question” that former President Trump could assert the
Communications Privilege and that the Communications Privilege was “of constitutional

187 Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021), cert. denied, 142 S. Ct. 1350 (2022).
188 Id. at 16.
189 44 U.S.C. § 2205(2)(C).
190 Id. at § 2205(2).
191 Thompson, 20 F.4th at 20-21.
192 Id. at 21-22.
193 Trump v. Thompson, Civil Action No. 21-cv-2769 (TSC), 2021 U.S. Dist. LEXIS 216812, at *26 (D.D.C. Nov. 9,
2021).
194 Id. at *29.
195 Id. at *27-29.
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stature.”196 Nevertheless, the court held that a “rare and formidable alignment of [three] factors”
supported disclosure of the documents to the Committee and outweighed the former President’s
interest in confidentiality.197
First, the court stated that President Biden’s determination that it was neither in the executive
branch’s nor the public’s interest to assert Privilege over the requested documents “carries
immense weight in overcoming the former President’s” claim.198 Consistent with previous case
law, the court viewed President Biden as “the principal holder and keeper of executive privilege”
and the judiciary as “illequipped to ... second guess the expert judgment of the sitting
President.”199
Second, the House had a “uniquely weighty interest in investigating the causes and
circumstances” of the January 6 attack on the U.S. Capitol.200 Indeed, the court noted that having
presented a “sound factual predicate” for the requested documents, “there would seem to be few,
if any, more imperative interests squarely within Congress’s wheelhouse than ensuring the safe
and uninterrupted conduct of its constitutionally assigned business.”201
Third, and “weighing still more heavily” against former President Trump, was “the fact that the
judgment of the Political Branches is unified as to these particular documents.”202 The court was
unwilling to “needlessly disturb ‘the compromises and working arrangements that” the Congress
and the President had already reached.203
In light of these three factors, the D.C. Circuit held that “the profound interests in disclosure
advanced by President Biden and the January 6th Committee far exceed [former President
Trump’s] generalized concerns for Executive Branch confidentiality.”204 That holding was given
added significance by the court’s determination that it would have been compelled to reach that
conclusion “under any of the tests advocated by former President Trump,” including the
“demonstrated, specific need” standard from Nixon or the “demonstrably critical” standard from
Senate Select.205 As such, it appears the Select Committee would have been able to overcome the
Communications Privilege in this circumstance even if President Biden had supported former
President Trump’s Privilege claim.
The Supreme Court picked up on this point in denying former President Trump’s petition to stay
the D.C. Circuit decision.206 In interpreting the opinion below, the Supreme Court—in an
unsigned order—reasoned that Mr. Trump’s “status as a former President [] made no difference to
the court’s decision” since the D.C. Circuit had “concluded that President Trump’s claims would
have failed even if he were an incumbent.”207 Because the former President’s assertion of

196 Thompson, 20 F. 4th at 32.
197 Id. at 33.
198 Id.
199 Id. at 35.
200 Id.
201 Id. at 35-36.
202 Thompson, 20 F.4th at 37.
203 Id. at 38 (quoting Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2023 (2020)).
204 Id. at 33.
205 Id. at 41 (“The legislative interest at stake passes muster under any of the tests pressed by former President
Trump.”).
206 Trump v. Thompson, 142 S. Ct. 680 (2022). The Supreme Court later denied certiorari. 142 S. Ct. 1350 (2022).
207 142 S. Ct. at 680. Justice Thomas would have granted the former President’s application. Justice Kavanaugh
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privilege would have been unsuccessful either way, the Court declared the D.C. Circuit’s
discussion of when executive privilege claims could properly be asserted by former Presidents to
be nonbinding dictum.208
A Summary of the Basic Judicially Established
Contours of the Communications Privilege
The basic contours of the Communications Privilege that can be drawn from the judicial opinions
discussed in this report appear to include the following:
 There is a privilege protecting confidential communications made in support of
official presidential decisionmaking that is implicitly based in both the
President’s powers under Article II and the constitutional separation of powers.209
 The Communications Privilege does not protect all presidential communications,
but only those made “‘in performance of [a President’s] responsibilities,’ ‘of his
office,’ and made ‘in the process of shaping policies and making decisions.’”210
 In addition to protecting communications directly involving the President, the
Communications Privilege also appears to protect communications authored by,
or solicited and received by, the President’s closest advisers (or by staff of those
advisers) for purposes of assisting the President in his decisionmaking, even if
those communications are never ultimately received by the President.211
 The courts, and not the President, are the final arbiter of the Communications
Privilege, but the invocation of the Communications Privilege by the President,
in response to a demand for information from either the courts or Congress,
creates “presumptive” protections for the communications in question.212
 The presumptive protections triggered by an assertion of the Communications
Privilege are not absolute. Because the Communications Privilege is a qualified
one, the President’s interest in preserving confidentiality must be balanced
against the public interests served by disclosure in a given case and can therefore
be overcome by an adequate showing of need made by the party seeking the
privileged information.213

authored a concurrence to clarify his position that “[a] former President must be able to successfully invoke the
Presidential communications privilege for communications that occurred during his Presidency.” Id. (Kavanaugh, J.,
concurring) Once invoked, it appears to be Justice Kavanaugh’s view that the tests from Nixon and Senate Select “may
apply to a former President’s privilege claim as they do to a current President’s privilege claim.” Id. at 681.
208 Id. at 680.
209 Nixon, 418 U.S. at 705-08.
210 Nixon II, 433 U.S. at 449.
211 Espy, 121 F.3d at 751-52. Though Espy explicitly reserved the question of whether this extension of the Privilege
applies in the congressional context. Id. at 753.
212 Nixon, 418 U.S. at 708.
213 Id. at 706.
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 The requisite standard of need varies depending on the context in which the
Communications Privilege is asserted. In a congressional investigation, the
Communications Privilege yields when the subpoenaed material is
“demonstrably critical to the responsible fulfillment of the committee’s
functions.”214 Drawing from the criminal context, that may require at least that
the material sought is likely to contain “important evidence” that is “not
practically available from another source.”215
 In the context of legislation, “limited intrusions” on the Communications
Privilege can be justified by “important objectives”—at least with respect to
privileged communications of former Presidents, but possibly also for sitting
Presidents.216 More significant intrusions—for example, compelled disclosure
outside the executive branch (rather than to an executive agency)—may not be
treated in the same way.
 When another branch of government seeks to compel the disclosure of
presidential communications, separation of powers protections may attach even
before an assertion of the Communications Privilege.217
 Former Presidents appear to retain the ability to assert the Communications
Privilege to protect communications that occurred during their term of office.218
But because the Communications Privilege seeks to protect the presidency and
not individual Presidents, the strength, and therefore the ultimate success, of any
Privilege claim by a former President may be highly influenced by whether that
claim is supported by the sitting President.219

Author Information

Todd Garvey

Legislative Attorney

214 Senate Select, 498 F.2d at 731.
215 Espy, 121 F.3d at 754-55.
216 Nixon II, 433 U.S. at 452-54 (assessing Congress’s interests in the context of a communications privilege claim by a
former President).
217 Cheney, 542 U.S. at 385.
218 Nixon II, 433 U.S. at 451.
219 Id. at 449-51; Dellums, 561 F. 2d at 247.
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