Trump claimed executive privilege to shield info from Jan. 6 committee. Here's what that means
Former President Donald Trump is locking horns with a congressional committee over whether he can continue to shield information from public view after leaving the White House.
Trump appealed this week after a federal judge rejected his request to block release of documents to the House committee investigating the Jan. 6 Capitol insurrection.
The Biden administration largely waived executive privilege over those documents, freeing the National Archives to provide them to the committee. But Trump sued to try to prevent them from being made public.
The test of executive privilege by the former president is expected to eventually reach the Supreme Court.
The right of presidents to shield certain information has been invoked throughout history but is not specifically outlined in the Constitution. Instead, courts have ruled that it is an implicit power of the presidency but not one that is absolute.
Here is what we know about executive privilege.
What is executive privilege?
Executive privilege is a right presidents have claimed under the Constitution to withhold certain information and documents from the other branches of government and the public. While it isn’t specifically enumerated in the Constitution, presidents have claimed that it is inherent in the separation of powers clause and courts have upheld the right.
Is executive privilege a new power?
No, the concept has been part of the presidency since the earliest days of the U.S. government. In 1792, President George Washington contemplated with cabinet members about how to respond to a congressional inquiry, according to the Congressional Research Service.
The phrase “executive privilege” wasn’t widely used until President Dwight D. Eisenhower coined it in response to Sen. Joseph McCarthy’s attempt to force executive branch officials to testify during the Red Scare, according to the National Constitution Center.
However, courts didn’t establish that it was an inherent power of the presidency until the 1970s as part of the investigations into Watergate and President Richard Nixon’s taped conversations in the Oval Office. The U.S. Supreme Court affirmed the right in one of Nixon’s cases.
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Can a president invoke executive privilege to avoid disclosing any information they want?
No. The power of executive privilege generally is invoked because of national security concerns or to protect deliberations between the president and top aides. The latter is designed to ensure the president can receive candid counsel without fear of a subpoena.
But executive privilege is not absolute. Courts can force disclosure if they believe the need to make the information public outweighs the confidentiality. That standard dates to the Nixon cases of the 1970s.
When have presidents invoked executive privilege before?
Presidents have invoked executive privilege at varying times throughout history, some more sparingly than others.
Washington shielded information about a failed military operation from Congress and, according to the Constitution Center, the Eisenhower administration used it 44 times. Nixon resigned after his claims of executive privilege over Oval Office recordings failed.
More recently, President Bill Clinton raised executive privilege 14 times, including several instances to prevent grand jury testimony during the Monica Lewinsky scandal, according to the Congressional Research Service.
President George W. Bush used executive privilege to avoid complying with congressional subpoenas related to the firing of U.S. attorneys, among half a dozen claims.
In 2012, President Barack Obama’s administration claimed executive privilege in a widely publicized case. Republicans in Congress voted to hold Attorney General Eric Holder in contempt over the administration’s refusal to turn over documents on Operation Fast and Furious, a botched investigation that unraveled after illegally obtained weapons were found at the scene of a fatal shooting of a Border Patrol agent.