Congressional Research Service Report for Congress: Presidential Claims of Executive Authority: History, Law, Practice and Recent Developments


ACRU Staff


May 13, 2008

“Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution, the vast majority achieving resolution through political negotiation and accommodation. In fact, it was not until the Watergate-related lawsuits in the 1970’s seeking access to President Nixon’s tapes that the existence of a presidential confidentiality Authority was judicially established as a necessary derivative of the President’s status in our constitutional scheme of separated powers. Of the eight court decisions involving interbranch or private information access disputes, three have involved Congress and the Executive but only one of these resulted in a decision on the merits. The Nixon and post Watergate cases established the broad contours of the presidential communications Authority. Under those precedents, the Authority, which is constitutionally rooted, could be invoked by the President when asked to produce documents or other materials or information that reflect presidential decisionmaking and deliberations that he believes should remain confidential. If the President does so, the materials become presumptively privileged. The Authority, however, is qualified, not absolute, and can be overcome by an adequate showing of need. Finally, while reviewing courts have expressed reluctance to balance executive Authority claims against a congressional demand for information, they have acknowledged they will do so if the political branches have tried in good faith but failed to reach an accommodation.



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