FLASHBACK 2008: Congressional Research Service- Presidential Claims of Executive Privilege- History, Law, Practice and Recent Developments →

-PDF

🔷‘In Nixon v. Sirica, the first of the Watergate cases, a panel of the District of Columbia Circuit rejected President Nixon’s claim that he was absolutely immune from all compulsory process whenever he asserted a formal claim of executive privilege, holding that while presidential conversations are “presumptively privileged,” the presumption could be overcome by an appropriate showing of public need by the branch seeking access to the conversations. In Sirica, “a uniquely powerful,” albeit undefined, showing was deemed to have been made by the Special Prosecutor that the tapes subpoenaed by the grand jury contained evidence necessary to carrying out the vital function of determining whether probable cause existed that those indicted had committed crimes.’
🔷On the other hand, the court explained, the presidential communications privilege is rooted in “constitutional separation of powers principles and the President’s unique constitutional role” and applies only to “direct decisionmaking by the President.” The privilege may be overcome only by a substantial showing that “the subpoenaed materials likely contain important evidence” and that “the evidence is not available with due diligence elsewhere.” The presidential privilege applies to all documents in their entirety and covers final and post-decisional materials as well as pre-deliberative ones. Turning to the chain of command issue, the court held that the presidential communications privilege must cover communications made or received by presidential advisers in the course of preparing advice for the President even if those communications are not made directly to the President. The court rested its conclusion on “the President’s dependence on presidential advisers and the inability of the deliberative process privilege to provide advisers with adequate freedom from the public spotlight” and “the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources.” Thus the privilege will “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.’