During the treason trial of Aaron Burr, Chief Justice John Marshall moved to compel President Thomas Jefferson to produce his private letters on the matter. Jefferson produced the letters--but said he had the power to withhold them and was complying voluntarily.
and
Nixon invoked executive privilege and refused to turn over any tapes. The Supreme Court actually acknowledged the existence of a privilege, the need to allow a president to get free and candid advice. But it denied that the president's claim of absolute privilege could prevail and said in this case that the public interest was served by obtaining the full truth during a criminal prosecution. Nixon gave up the tapes--and days later resigned from office. A quarter-century later, Clinton was rebuffed by a federal judge when he invoked executive privilege during the Monica Lewinsky scandal to try to keep his aides from testifying.
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It may be a derived power, but executive privilege is a real power. It exists, as the Supreme Court said, to allow the president to have candid and free-flowing advice. But it is a presidential power. The logic is clear: It does not apply in a blanket way to every presidential aide; it applies when the information being sought impinges on the president's ability to get that free-flowing advice--in other words, when the communications are directly or indirectly between the president and his aides, or the president and his executive branch advisers. It does not apply to communications between Justice officials and White House aides who are, say, discussing the politics of firing U.S. attorneys or the legal basis of a surveillance program.
Mr. Ornstein points out that Congress has the strong argument, but now the Roberts Court is in power . . . so?
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