Skip Navigation
Expert Brief

Background on Executive Privilege

Background on executive privilege.

  • Aziz Huq
Published: March 23, 2007

Exec­ut­ive priv­ilege refers to a wide vari­ety of evid­en­tiary and substant­ive priv­ileges.  Despite its import­ance, exec­ut­ive priv­ilege has never been conclus­ively defined by Congress or the exec­ut­ive branch.  An exec­ut­ive order issued on Novem­ber 1, 2001, however, cata­logues the most import­ant species of exec­ut­ive priv­ilege claims: 

The Pres­id­ent’s consti­tu­tion­ally based priv­ileges subsume priv­ileges for records that reflect: [1] milit­ary, diplo­matic, or national secur­ity secrets (the state secrets priv­ilege); [2] commu­nic­a­tions of the Pres­id­ent or his advisors (the pres­id­en­tial commu­nic­a­tions priv­ilege); [3] legal advice or legal work (the attor­ney-client or attor­ney work product priv­ileges); and [4] the delib­er­at­ive processes of the Pres­id­ent or his advisors.

The most extens­ive discus­sion of these vari­et­ies of exec­ut­ive priv­ilege is found in federal case law.  (When Congress and the exec­ut­ive have clashed over priv­ilege issues, their resol­u­tions of the conflicts have not yiel­ded precise formu­la­tions.  Congress tends to use blunt instru­ments, such as the purse power or confirm­a­tion author­ity, to extract conces­sions from the exec­ut­ive.  The infre­quent exec­ut­ive-legis­lat­ive conflicts that have reached the courts ended incon­clus­ively. ) Courts treat exec­ut­ive priv­ilege claims with greater defer­ence than Congress because of the two branches’ differ­ent insti­tu­tional compet­ences.  Hence, the judi­cial scope of exec­ut­ive priv­ilege may be larger than the doctrine’s applic­a­tion to the congres­sional context.

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.


1. THE PRES­ID­EN­TIAL COMMU­NIC­A­TIONS PRIV­ILEGE


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 Supreme Court recog­nized this priv­ilege in Nixon v. United States and Nixon v. Admin­is­trator of General Services.  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. 

In the Nixon cases, the Supreme Court applied the term pres­id­en­tial commu­nic­a­tion priv­ilege solely to commu­nic­a­tions involving the Pres­id­ent.  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.  For example, commu­nic­a­tions authored and received in response to a soli­cit­a­tion by a member of a pres­id­en­tial advisors staff fall within the priv­ilege. 

The D.C. Circuit cautioned, however, that not every commu­nic­a­tion with a pres­id­en­tial advisor would be protec­ted:  [T]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.  Hence, commu­nic­a­tions by advisors when they act in non-advis­ory capa­city are unpro­tec­ted.  But it seems that vice-pres­id­en­tial commu­nic­a­tions that implic­ate policy-making do fall within the priv­ileges bounds.  In a later case, the D.C. 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. 

Once prop­erly asser­ted by a qual­i­fied person, the pres­id­en­tial commu­nic­a­tions priv­ilege applies to docu­ments in their entirety, and covers final and post-decisional mater­i­als as well as pre-delib­er­at­ive ones.  Crit­ic­ally, it covers any factual matter contained in a commu­nic­a­tion, and in this regard sweeps broader than the delib­er­at­ive process priv­ilege described below.  Hence, Vice Pres­id­ent Cheney has invoked the priv­ilege to refuse disclos­ure of factual inform­a­tion such as the names of people present at meet­ings and the cost of those meet­ings. 

Never­the­less, the pres­id­en­tial commu­nic­a­tions priv­ilege can be over­come by a suffi­cient show­ing of need.  Indeed, in one of the first judi­cial recog­ni­tions of an exec­ut­ive branch secrecy claim, Chief Justice John Marshall endorsed the idea that the priv­ilege is defeas­ible.  In other words, however well-estab­lished the priv­ilege may be, it has never been abso­lute.  Explain­ing what must be shown to over­come the priv­ilege, the D.C. Circuit has held a litig­ant must demon­strate that a docu­ment contains import­ant evid­ence and this evid­ence is not avail­able with due dili­gence else­where. 

The Supreme Court also strongly sugges­ted the pres­id­en­tial commu­nic­a­tions priv­ilege must yield whenever a coordin­ate branchs consti­tu­tional role is at stake.  Nixon I concluded that Pres­id­ent Nixon had to yield to a subpoena to preserve the func­tion of the courts under Article III, and Nixon II held that Congress could roll back a former pres­id­ents priv­ilege in light of the scope of Congress broad invest­ig­at­ive power.  Thus, Congress ought to be able to over­come the pres­id­en­tial commu­nic­a­tions priv­ilege in any instance that it exer­cises its consti­tu­tional powers to legis­late and conduct over­sight.

2. THE DELIB­ER­AT­IVE PROCESS PRIV­ILEGE


The “delib­er­at­ive process priv­ilege” is “distinct and … differ­ent” from the pres­id­en­tial commu­nic­a­tions priv­ilege. It protects exec­ut­ive branch offi­cials’ commu­nic­a­tions that are “predecisional” and a “direct part of the delib­er­at­ive process.” A docu­ment is predecisional if IT was “gener­ated before the adop­tion of an agency policy” and delib­er­at­ive if it “reflects the give-and-take of the consultat­ive process.” “The under­ly­ing rationale is that disclos­ure of delib­er­at­ive commu­nic­a­tions will chill future commu­nic­a­tions, thus dimin­ish­ing the effect­ive­ness of exec­ut­ive decision-making and injur­ing the public interest.” This priv­ilege has long been recog­nized by the Supreme Court, and is the subject of extens­ive discus­sion by the D.C. Circuit. Pres­id­ent Bush’s first claim of exec­ut­ive priv­ilege, entered on Decem­ber 12, 2001 regard­ing Depart­ment of Justice prosec­utorial records, cited the records’ delib­er­at­ive char­ac­ter to justify the asser­tion that they were “presumptively priv­ileged.”

Prop­erly invoked, the delib­er­at­ive process priv­ilege is narrower than the pres­id­en­tial commu­nic­a­tions priv­ilege “primar­ily because the delib­er­at­ive process priv­ilege does not extend to purely factual mater­ial” unless “it is inex­tric­ably inter­twined with policy-making processes.” It is a “common law priv­ilege,” not a consti­tu­tional one; hence, it is more suscept­ible to “congres­sional or judi­cial nega­tion” than the pres­id­en­tial commu­nic­a­tions priv­ilege. Further, “the priv­ilege disap­pears … when there is any reason to believe govern­ment miscon­duct occurred.” Hence it should not be surpris­ing that, as a histor­ical matter, “[c]orrup­tion and misman­age­ment have repeatedly come to light over strenu­ous exec­ut­ive oppos­i­tion only because of congres­sional invest­ig­a­tion.” The history of success­ful congres­sional invest­ig­a­tions confirms Congress’s need for an over­ride of the priv­ilege when viol­a­tions of the law are at issue.

3. THE ATTOR­NEY-CLIENT PRIV­ILEGE
Federal courts have assumed that govern­mental entit­ies have the same attor­ney-client protec­tion as private corpor­ate entit­ies. Courts have justi­fied this priv­ilege based on the assump­tion that the “need of the govern­mental client for assur­ances of confid­en­ti­al­ity [is] equi­val­ent to a corpor­a­tion’s need for confid­en­tial advice.” A govern­mental attor­ney-client priv­ilege claim, however, cannot be sustained in the face of accus­a­tions of crim­inal wrong­do­ing.

4. NATIONAL SECUR­ITY-RELATED PRIV­ILEGE
Courts have distin­guished issues of national secur­ity from other species of pres­id­en­tial priv­ilege and gran­ted the exec­ut­ive consid­er­ably more discre­tion with regard to such claims. The Supreme Court, indeed, locates the Pres­id­ent’s right of non-disclos­ure of secur­ity-related inform­a­tion not only in stat­utory commands, but also in the Commander-in-Chief clause of Article II of the Consti­tu­tion. Congress, too, has recog­nized the exec­ut­ive branch’s primacy in gath­er­ing and sift­ing sens­it­ive intel­li­gence, while also assert­ing its author­ity to receive national secur­ity inform­a­tion.

In prac­tice, the congres­sional posi­tion is nuanced. On the one hand, “as the head of the exec­ut­ive branch, the Pres­id­ent gener­ally is acknow­ledged to be ‘the owner’ of prac­tical intel­li­gence.” At the same time, “Congress, through its congres­sional intel­li­gence commit­tees, has asser­ted in prin­ciple a legal author­ity for unres­tric­ted access to intel­li­gence inform­a­tion,” with the exec­ut­ive preserving power to determ­ine how that inform­a­tion is shared.

Accord­ing to comment­ary, Congress has author­ity to resist a national secur­ity-related priv­ilege claim. History supports this claim, with two instances warrant­ing mention. First, one of the earli­est invoc­a­tions of exec­ut­ive priv­ilege, by Pres­id­ent George Wash­ing­ton, concerned a congres­sional inquiry into a failed Novem­ber 1791 milit­ary exped­i­tion. Under persist­ing congres­sional pres­sure, Wash­ing­ton even­tu­ally gave the inform­a­tion up, even though he insisted on his right to with­hold inform­a­tion. As a matter of custom there­fore, disclos­ure rather than secrecy has been the default posi­tion since the early Repub­lic.

Second, in Novem­ber 1975, the House Select Commit­tee on Intel­li­gence issued a subpoena to then-Secret­ary of State Henry Kissinger compel­ling him to provide docu­ments on covert actions, and then voted to hold him in contempt for fail­ure to disclose those docu­ment. Under the pres­sure of the contempt sanc­tion, the Ford Admin­is­tra­tion agreed to have an aide read from the docu­ments verbatim into the tran­script, hence de-escal­at­ing the conflict.

In sum, priv­ilege claims based on national secur­ity grounds are no more immune from care­ful congres­sional pres­sure and scru­tiny than other forms of exec­ut­ive priv­ilege. Recent exper­i­ence suggests, moreover, that priv­ilege claims based on national secur­ity concerns may hide viol­a­tions of the law, malfeas­ance, and inef­fi­cien­cies as much as any other priv­ilege claim.

5. CITA­TIONS
In re Sealed Case, 121 F.3d 729, 735 n.2 (D.C. Cir. 1997)
Congress has acknow­ledged exec­ut­ive priv­ilege’s exist­ence without defin­ing it. See, e.g., 44 U.S.C. § 2204(c)(2) (2007) (“Noth­ing in [the Pres­id­en­tial Records Act of 1978] shall be construed to confirm, limit, or expand any consti­tu­tion­ally-based priv­ilege which may be avail­able to an incum­bent or former Pres­id­ent.”). While the exec­ut­ive branch has long exer­cised the priv­ilege aggress­ively, it has not provided a compre­hens­ive defin­i­tion. In the eight­eenth, nine­teenth, and early twen­ti­eth century, the exec­ut­ive branch made claims to secrecy, but did not clearly define the priv­ilege being claimed or distin­guish differ­ent grounds for lodging the priv­ilege. See Mark J. Rozell, Exec­ut­ive Priv­ilege: Pres­id­en­tial Power, Secrecy and Account­ab­il­ity 29–39 (2d ed. 2002). Tellingly, it was not until the Eisen­hower Admin­is­tra­tion that the phrase “exec­ut­ive priv­ilege” was used and stable doctrinal frame­works began to emerge. Id. at 39.
Exec­ut­ive Order No. 13, 233, repro­duced at 44 U.S.C. §2204 note (2007); see also Gerald Wetlaufer, Justi­fy­ing Secrecy: An Objec­tion to the General Delib­er­at­ive Priv­ilege, 65 Ind. L. J. 845, 845 n.3 (1990) (list­ing in more detail priv­ileges, and adding the priv­ilege for the iden­tity of confid­en­tial inform­ants; inform­a­tion subject to a stat­utory prohib­i­tion against disclos­ure; inform­a­tion that, if disclosed, would signi­fic­antly dimin­ish the exec­ut­ive’s abil­ity to engage in a planned trans­ac­tion; and inform­a­tion that has been commu­nic­ated under prom­ises or expect­a­tions of confid­en­ti­al­ity).
“Congress’s legal under­stand­ing of exec­ut­ive priv­ilege is more diffi­cult to divine than that of the courts because relev­ant stat­utes address the issue only obliquely and because other than stat­utes, conven­tional formats for express­ing congres­sional legal opin­ion are not well estab­lished.” Peter M. Shane, Legal Disagree­ment and Nego­ti­ation in a Govern­ment of Laws: The Case of Exec­ut­ive Priv­ilege Claims Against Congress, 71 Minn. L. Rev. 461, 477 (1987).
Rozell, Exec­ut­ive Priv­ilege, supra note at ii, at 160–61.
These cases never­the­less strongly suggest that exec­ut­ive-legis­lat­ive disputes about inform­a­tion are justi­ciable. See, e.g., United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977) (reject­ing argu­ment that such disputes are polit­ical ques­tions, and setting forth incre­mental proced­ures for resolv­ing disputes); United States v. AT&T, 551 F.2d 384, 394 (D.C. Cir. 1976) (recog­niz­ing courts’ power to resolve such disputes but “paus[ing] to allow for further settle­ment”); Select Comm. on Pres­id­en­tial Campaign Activ­it­ies v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974) (reject­ing a subcom­mit­tee’s subpoena as “merely cumu­lat­ive” when a differ­ent congres­sional commit­tee had already secured the docu­ments being sought). They also suggest courts prop­erly adopt a “staged decisional struc­ture” to adju­dic­ate these claims." Select Comm. on Pres­id­en­tial Campaign Activ­it­ies, 498 F.2d at 730.
In re Sealed Case, 121 F.3d at 752; accord Norman Dorsen & John Shat­tuck, Exec­ut­ive Priv­ilege, the Congress and the Courts, 35 Ohio St. L.J. 1, 16–22, 24–33 (1974).
Judi­cial Watch v. Dep’t of Justice, 365 F.3d 1108, 1124 (D.C. Cir. 2004).
418 U.S. 683 (1974) (“Nixon I”) (hold­ing that Pres­id­ent Nixon was obliged to submit to a subpoena duces tecum for tape record­ings and docu­ments in the context of a crim­inal proceed­ing).
433 U.S. 425, 446–55 (1977) (“Nixon II”) (uphold­ing the “limited intru­sion into exec­ut­ive confid­en­ti­al­ity” affected by the Pres­id­en­tial Records Act).
Nixon I, 418 U.S. at 705.
In re Sealed Case, 121 F.3d at 751–52; accord Judi­cial Watch, 365 F.3d at 1114. But, there­after, courts give the Pres­id­ent “an oppor­tun­ity to raise more partic­u­lar­ized claims of priv­ilege.” In re Sealed Case, 121 F.3d at 745.
In re Sealed Case, 121 F.3d at 752. But see Case Note: Consti­tu­tional Law-Exec­ut­ive Priv­ilege, 111 Harv. L. Rev. 861 (1998) (criti­ciz­ing the D.C. Circuit’s decision to “need­lessly expan[d] the secrecy afforded the exec­ut­ive branch”).
In re Sealed Case, 121 F.3d at 752 (emphasis added); cf. Ass’n of Am. Phys­i­cians & Surgeons v. Clin­ton, 997 F.2d 898, 909 (D.C. Cir. 1993) (applic­a­tion of the Federal Advis­ory Commit­tee Act to a taskforce that repor­ted directly to the Pres­id­ent might be an uncon­sti­tu­tional infringe­ment on the pres­id­en­tial commu­nic­a­tions priv­ilege).
In re Sealed Case, 121 F.3d at 752.
Cheney v. U.S. Dist. Court for the Dist. Of Columbia, 542 U.S. 367, 385 (2004) (noting that the “special consid­er­a­tions [that] control when the Exec­ut­ive Branch’s interests in main­tain­ing the autonomy of its office and safe­guard­ing the confid­en­ti­al­ity of its commu­nic­a­tions are implic­ated” also apply in cases involving the Vice Pres­id­ent). The Supreme Court in Cheney impli­citly recog­nized that the Vice Pres­id­ent’s priv­ilege was not abso­lute and was subject to judi­cial poli­cing when it remanded the case rather than dismiss­ing it. Id. at 392.
Judi­cial Watch, 365 F.3d at 1117.
Judi­cial Watch, 365 F.3d at 1114 (emphasis added and quota­tion marks and cita­tion omit­ted).
Rozell, Exec­ut­ive Priv­ilege, supra note ii, at 155. While this is not a novel use of the priv­ilege, Vice Pres­id­ent Cheney is the first vice pres­id­ent to assert the priv­ilege inde­pend­ently.
Ibid.; Nixon I, 418 U.S. at 707 (“[T]he legit­im­ate needs of the judi­cial process may outweigh Pres­id­en­tial priv­ilege.”); accord Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) (en banc) (hold­ing that pres­id­en­tial invoc­a­tion of priv­ilege against a crim­inal subpoena “must fail in the face of the uniquely power­ful show­ing made by the Special Prosec­utor [Archibold Cox] in this case”). The priv­ilege can also be over­come in the civil litig­a­tion context. See Dellums v. Powell, 642 F.2d 1351, 1354, 1364 (D.C. Cir. 1981); Sun Oil Co. v. United States, 206 Ct. Cl. 742, 514 F.2d 1020, 1024 (1975).
Paul A. Freund, Fore­word: On Pres­id­en­tial Priv­ilege, 88 Harv. L. Rev. 13, 30–31 (1974).
In re Sealed Case, 121 F.3d at 754.
Nixon I, 418 U.S. at 707.
Nixon II, 433 U.S. 451, 453 (“The expect­a­tion of the confid­en­ti­al­ity of exec­ut­ive commu­nic­a­tions … has always been limited and subject to erosion over time after an admin­is­tra­tion leaves office.”); see gener­ally Wilkin­son v. United States, 365 U.S. 399, 408–09 (1961) (describ­ing scope of Congress’ invest­ig­at­ive power). Nixon II noted that a sitting Pres­id­ent’s claim to determ­ine what the national interest requires by way of non-disclos­ure is entitled to more defer­ence than the claim of a former pres­id­ent. Nixon II, 433 U.S. at 449.
In re Sealed Case, 121 F.3d at 745.
Russell L. Weaver and James T.R. Jones, The Delib­er­at­ive Process Priv­ilege, 54 Mo. L. Rev. 279, 290 (1989).
Id. at 296 (quot­ing Senate of Puerto Rico v. United States Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987).
Judi­cial Watch v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006).
Wetlaufer, supra note iii, at 847.
See, e.g., Mink v. Env’t Protec­tion Agency, 410 U.S. 73, 86–87 (1973) (citing Kaiser Aluminum & Chem. Corp. v. United States, 141 Ctr. Cl. 38, 157 F. Supp. 939 (1958) (Reed, J.)); United States v. Morgan, 313 U.S. 409, 409, 421–22 (1941).
See, e.g., Baker & Hostetler LLP v. U.S. Dep’t of Commerce,—F.3d—, 2006 WL 3751451, at *8 (D.C. Cir. 2006) (hold­ing that “notes taken by govern­ment offi­cials often fall within the delib­er­at­ive process priv­ilege”); Judi­cial Watch v. FDA, 449 F.3d at 151 (hold­ing that docu­ments may be post-decisional for one purpose and predecisional for another).
Mark J. Rozell, Exec­ut­ive Priv­ilege Revived? Secrecy and Conflict During the Bush Pres­id­ency, 52 Duke L. J. 403, 413–19 (2002) (cita­tion omit­ted). The Justice Depart­ment also claimed vaguely that “congres­sional access to these docu­ments would be contrary to the national interest.” Ibid. (cita­tion omit­ted).
In re Sealed Case, 121 F.3d at 750.
Judi­cial Watch, 365 F.3d at 1121 (quot­ing Soucie v. David, 448 F.2d 1067, 1071 (D.C. Cir. 1971); quota­tion marks omit­ted).
In re Sealed Case, 121 F.3d at 745. The exec­ut­ive has not always agreed. In late 1981, Attor­ney General William French Smith issued a formal opin­ion enumer­at­ing forms of exec­ut­ive priv­ilege on which then-Secret­ary of the Interior James Watt could rely in resist­ing congres­sional docu­ment requests. Smith cited the exec­ut­ive’s power to protect “quint­es­sen­tially delib­er­at­ive, predecisional docu­ments” and argued that “the congres­sional over­sight interest will support a demand for predecisional, delib­er­at­ive docu­ments in the posses­sion of the Exec­ut­ive Branch only in the most unusual circum­stances.” Shane, supra note iv, at 503–04 (foot­notes and cita­tions omit­ted); see id. at 510–11 (describ­ing Smith’s similar claims during the 1982 contro­versy about Anne Gorsuch’s claims of exec­ut­ive priv­ilege).
In re Sealed Case, 121 F.3d at 746. In 1982, Attor­ney General Smith indic­ated that even priv­ilege claims related to open law enforce­ment files “will not be employed to shield docu­ments which contain evid­ence of crim­inal or uneth­ical conduct by agency offi­cials from proper review.” Shane, supra note iv, at 511.
Raoul Berger, Exec­ut­ive Priv­ilege v. Congres­sional Inquiry. 12 UCLA L. Rev. 1044, 1049–50 (1964–65) (list­ing cases).
See, e.g., Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980)
Note, Attor­ney-Client Priv­ileges for the Govern­ment Entity, 97 Yale L.J. 1725, 1734 (1988).
“[A] govern­ment attor­ney, even one hold­ing the title Deputy White House Coun­sel, may not assert an attor­ney-client priv­ilege before a federal grand jury if commu­nic­a­tions with the client contain inform­a­tion pertin­ent to possible crim­inal viol­a­tions.” In re Lind­sey, 148 F.3d 1100, 1110 (D.C. Cir. 1998); the Lind­sey Court recog­nized, however, a possible excep­tion for milit­ary secrets. Id. at 1112, n.8; see also In re Lind­sey, 158 F.3d 1263 (D.C. Cir. 1998) (discuss­ing at length the broader priv­ilege claim and reject­ing it).
See, e.g., Nixon I, 418 U.S. at 706 (“Absent a claim of need to protect milit­ary, diplo­matic, or sens­it­ive national secur­ity secrets [exec­ut­ive priv­ilege is not abso­lute.]). This is dicta, but oft repeated. See, e.g., In re Lind­sey, 148 F.3d at 1112, n.8. The first Supreme Court recog­ni­tion of the state secrets priv­ilege came in United States v. Reyn­olds, 345 U.S. 1 (1953). It is instruct­ive that the priv­ilege claim in Reyn­olds turned out to shield evid­ence of tortu­ous govern­ment negli­gence, and not de facto state secrets. See Louis Fisher, In the Name of National Secur­ity: Unchecked Pres­id­en­tial Power and the Reyn­olds Case 166–68 (2006).
See Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (”The author­ity to protect such [sens­it­ive] inform­a­tion falls on the Pres­id­ent as head of the Exec­ut­ive Branch and as Commander in Chief.").
See 50 U.S.C. § 435 (2007) (deleg­at­ing to the Pres­id­ent power to “estab­lish proced­ures to govern access to clas­si­fied inform­a­tion).
See, e.g., 50 U.S.C. § 413(a)(1) (2007) (requir­ing that ”the congres­sional intel­li­gence commit­tees [be] kept fully and currently informed of the intel­li­gence activ­it­ies of the United States"); 50 U.S.C. § 403–1(a)(1)(D) (2007) (requir­ing the Director of National Intel­li­gence to provide “national intel­li­gence” to “to the Senate and House of Repres­ent­at­ives and the commit­tees thereof”).
Alfred Cummings, Congress as a Consumer of Intel­li­gence Inform­a­tion, Cong. Research Serv., Dec. 14, 2005, at 2.
Ibid.
Dorsen and Shat­tuck, supra note vii, at 12.
Rozell, Exec­ut­ive Priv­ilege, supra note ii, at 29–30. Indeed, Wash­ing­ton subsequently refused to give to the House docu­ments concern­ing the Jay Treaty, even though the same docu­ments had been trans­mit­ted to the Senate. Louis Fisher, Invok­ing Exec­ut­ive Priv­ilege: Navig­at­ing Tick­lish Polit­ical Waters, 8 Wm. & Mary Bill of Rights J. 583, 588–92 (2000).
Louis Fisher, The Polit­ics of Exec­ut­ive Priv­ilege 247–49 (2004)