Executive Privilege 101

Found this discussion, relating to the Kagan nomination, that summarizes what Executive Privilege is all about. This is an excerpt, but the article is more detailed.

Excerpt: The term “executive privilege” is often used as a blanket term to refer to any presidential assertion that an executive branch document should not be disclosed, but the courts have recognized both a stronger and a weaker form of executive privilege.

The stronger “presidential communications privilege” 

The stronger form is known as the “presidential communications privilege.” This relatively robust privilege applies to communications made directly to the president so long as those communications occur “in performance of [a president’s] responsibilities” and “in the process of shaping policies and making decisions.” The presidential communications privilege may also apply to communications “authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.” 

Communications authored by agency officials—executive branch officials outside the White House—are not subject to the presidential communications privilege unless the documents were specifically solicited and received by the president or an appropriate White House advisor to the president. 

The weaker “deliberative process privilege” 

The weaker form of executive privilege is known as the “deliberative process privilege,” which applies to discussions among executive branch officials that are part of the government’s decision-making process. This privilege can apply to executive branch officials outside of the president’s inner circle, but it is both more limited in scope and easier to overcome.

Read full article here.

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