![]() ![]() Circuit also declined to grant the privilege to persons in the Justice Department who are at least twice removed from the President, but who aid the President in the exercise of his presidential pardon responsibilities. But it seems that vice-presidential communications that implicate policy-making do fall within the privileges bounds. Hence, communications by advisors when they act in non-advisory capacity are unprotected. Circuit cautioned, however, that not every communication with a presidential advisor would be protected: he privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisors staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President in the particular matter to which the communications relate. For example, communications authored and received in response to a solicitation by a member of a presidential advisors staff fall within the privilege. In 1997, the Court of Appeals for the District of Columbia Circuit extended the privilege to include communications made by presidential advisors in the course of preparing advice for the President – even when these communications are not made directly to the President. In the Nixon cases, the Supreme Court applied the term presidential communication privilege solely to communications involving the President. The Court grounded the privilege in the need for candor in executive branch decision-making and in the supremacy of each branch within its own assigned area of constitutional duties. ![]() The Supreme Court recognized this privilege in Nixon v. The presidential communications privilege protects from disclosure any communications that are either by the President directly or by his immediate advisors in the Office of the President to the President. THE PRESIDENTIAL COMMUNICATIONS PRIVILEGE This memo first describes the presidential communications privilege and the deliberative process privilege before turning to the attorney-client privilege and claims of secrecy on national security grounds.ġ. Hence, the judicial scope of executive privilege may be larger than the doctrine’s application to the congressional context. ) Courts treat executive privilege claims with greater deference than Congress because of the two branches’ different institutional competences. The infrequent executive-legislative conflicts that have reached the courts ended inconclusively. Congress tends to use blunt instruments, such as the purse power or confirmation authority, to extract concessions from the executive. (When Congress and the executive have clashed over privilege issues, their resolutions of the conflicts have not yielded precise formulations. The most extensive discussion of these varieties of executive privilege is found in federal case law. The President’s constitutionally based privileges subsume privileges for records that reflect: military, diplomatic, or national security secrets (the state secrets privilege) communications of the President or his advisors (the presidential communications privilege) legal advice or legal work (the attorney-client or attorney work product privileges) and the deliberative processes of the President or his advisors. An executive order issued on November 1, 2001, however, catalogues the most important species of executive privilege claims: Despite its importance, executive privilege has never been conclusively defined by Congress or the executive branch. Attend the Brennan Legacy Awards DinnerĮxecutive privilege refers to a wide variety of evidentiary and substantive privileges.Advance Constitutional Change Show / hide.National Task Force on Democracy Reform & the Rule of Law.Government Targeting of Minority Communities Show / hide.Campaign Finance in the Courts Show / hide.Gerrymandering & Fair Representation Show / hide.Ensure Every American Can Vote Show / hide. ![]()
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