Being President Has Its Privileges
Legal precedent has given the President of the United States the right to exercise legal privilege not available to most other citizens. One of these rights is called executive privilege, which allows the president to withhold disclosure of any communications made directly to the president in the performance of executive duties.
George Washington was the first President to claim executive privilege when Congress requested to see Chief Justice John Jay's notes from the Jay Treaty, an unpopular treaty negotiation with Great Britain. While not enshrined in the Constitution, or any other law, Washington's action created the precedent for the privilege.
When Richard Nixon tried to use executive privilege as a reason for not turning over subpoenaed evidence to Congress during the Watergate scandal, the Supreme Court ruled in United States v. Nixon that executive privilege did not apply in cases where a president was attempting to avoid criminal prosecution. Similarly, when President Bill Clinton attempted to use executive privilege regarding the Lewinsky scandal, the Supreme Court ruled in Clinton v. Jones that the privilege also could not be used in civil suits. These cases established the legal precedent that formally recognized executive privilege, although the parameters of the privilege have yet to be clearly defined.
According to another legal doctrine, the President of the United States is entitled to exercise something known as the "state secrets privilege." Under this doctrine, the president and the executive branch are entitled to withhold information or documents from discovery in legal proceedings if such release would harm national security. This legal precedent originated early in the 19th century when Thomas Jefferson refused to release military documents in the treason trial of Aaron Burr. The issue arose again in 1876 in Totten v. United States, when the Supreme Court dismissed a case brought by a former Union spy who alleged to have made an oral contract with President Lincoln. The claim was dismissed because the court felt that it may harm the government to disclose such details.
The privilege was not formally recognized by the U.S. Supreme Court until United States v. Reynolds (1953) where it was held to be a common law evidentiary privilege. In that case three employees of an Air Force contractor were killed when a B-29 Superfortress crashed in 1948 in Waycross, Georgia. Their widows brought an action seeking damages in federal court. As part of this action, they requested production of accident reports concerning the crash, but were told by the Air Force that the release of such details would threaten national security. The claimants were given judgement by the trial court, but the United States Supreme Court reversed the decision
Before the September 11 attacks, invocation of the privilege had been rare. Since 2001, the government has asserted the privilege in more cases and at earlier stages of the litigation. In some instances lawsuits have been dismissed before any adjudication of the merits of the case. For example in the Ninth Circuit's ruling in Mohamed v. Jeppesen Dataplan. On May 30, 2007, the ACLU sued Jeppesen on behalf of five plaintiffs who had been tortured in Morocco, Egypt and a United States base in Afghanistan. The suit alleged that, since 2001, Jeppesen provided support for at least seventy flights for the CIA's secret rendition program, transporting prisoners overseas to be tortured. The suit was dismissed in February 2008 on a motion from the United States government, on the theory that proceeding with the case would reveal state secrets and endanger relations with other nations that had cooperated. On September 8, 2010, in a 6–5 ruling, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of the suit, and the ACLU filed an appeal with the Supreme Court in December 2010. On May 16, 2011, the Supreme Court declined to review the decision of the Ninth Circuit to dismiss the case.
George Washington was the first President to claim executive privilege when Congress requested to see Chief Justice John Jay's notes from the Jay Treaty, an unpopular treaty negotiation with Great Britain. While not enshrined in the Constitution, or any other law, Washington's action created the precedent for the privilege.
When Richard Nixon tried to use executive privilege as a reason for not turning over subpoenaed evidence to Congress during the Watergate scandal, the Supreme Court ruled in United States v. Nixon that executive privilege did not apply in cases where a president was attempting to avoid criminal prosecution. Similarly, when President Bill Clinton attempted to use executive privilege regarding the Lewinsky scandal, the Supreme Court ruled in Clinton v. Jones that the privilege also could not be used in civil suits. These cases established the legal precedent that formally recognized executive privilege, although the parameters of the privilege have yet to be clearly defined.
According to another legal doctrine, the President of the United States is entitled to exercise something known as the "state secrets privilege." Under this doctrine, the president and the executive branch are entitled to withhold information or documents from discovery in legal proceedings if such release would harm national security. This legal precedent originated early in the 19th century when Thomas Jefferson refused to release military documents in the treason trial of Aaron Burr. The issue arose again in 1876 in Totten v. United States, when the Supreme Court dismissed a case brought by a former Union spy who alleged to have made an oral contract with President Lincoln. The claim was dismissed because the court felt that it may harm the government to disclose such details.
The privilege was not formally recognized by the U.S. Supreme Court until United States v. Reynolds (1953) where it was held to be a common law evidentiary privilege. In that case three employees of an Air Force contractor were killed when a B-29 Superfortress crashed in 1948 in Waycross, Georgia. Their widows brought an action seeking damages in federal court. As part of this action, they requested production of accident reports concerning the crash, but were told by the Air Force that the release of such details would threaten national security. The claimants were given judgement by the trial court, but the United States Supreme Court reversed the decision
Before the September 11 attacks, invocation of the privilege had been rare. Since 2001, the government has asserted the privilege in more cases and at earlier stages of the litigation. In some instances lawsuits have been dismissed before any adjudication of the merits of the case. For example in the Ninth Circuit's ruling in Mohamed v. Jeppesen Dataplan. On May 30, 2007, the ACLU sued Jeppesen on behalf of five plaintiffs who had been tortured in Morocco, Egypt and a United States base in Afghanistan. The suit alleged that, since 2001, Jeppesen provided support for at least seventy flights for the CIA's secret rendition program, transporting prisoners overseas to be tortured. The suit was dismissed in February 2008 on a motion from the United States government, on the theory that proceeding with the case would reveal state secrets and endanger relations with other nations that had cooperated. On September 8, 2010, in a 6–5 ruling, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of the suit, and the ACLU filed an appeal with the Supreme Court in December 2010. On May 16, 2011, the Supreme Court declined to review the decision of the Ninth Circuit to dismiss the case.