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Landmark Cases of the U.S. Supreme Court

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What Secrets Are Protected Under Executive Privilege?

In United States v. Nixon, the president's lawyers claimed that he had an absolute right of executive privilege. Since the power of executive privilege is not expressly stated in the Constitution, there was some controversy over this matter.

For years, presidents had claimed executive privilege on the grounds that there was a need to protect military, diplomatic, or national security secrets. The prevailing thought was that a president cannot be forced to share with other branches of government certain conversations, actions, or information if sharing that information could place the United States foreign relations at risk. This "state secrets privilege" was generally accepted.

In United States v. Nixon, Nixon's lawyers argued that executive privilege should extend to certain conversations between the president and his aides, even when national security is not at stake. They argued that in order for aides to give good advice and to truly explore various alternatives, they had to be able to be candid. If they were going to issue frank opinions, they had to know that what they said was going to be kept confidential.

In the opinion, the Supreme Court conceded that there is indeed a privilege for "confidential executive deliberations" about matters of policy having nothing to do with national security. This privilege is constitutionally based, deriving from the separation of powers. However, the Court held that this privilege is not absolute but can be overcome if a judge concludes that there is a compelling governmental interest in getting access to the otherwise privileged conversations, as in the case of the Nixon tapes.


Read each "secret" below. In the space to the left of the "secret" write "SS" for "state secrets" or "CED" for "confidential executive deliberations." To the right, mark "P" if you think the secret should be protected under executive privilege or "NP" if you think the secret would not be protected. Explain why you think the secret would or would not be protected.

State Secret (SS) or Confidential Executive Deliberation (CED)?


Protected by executive privilege (P) or not protected (NP)?
SS The American ambassador to France has been having a secret affair with a single woman who is not his wife. NP
No risk involved to United States
  Tobacco companies sued by smokers for allegedly causing cancer want to defend against the lawsuits by claiming that federal subsidies to tobacco growers show that there is a national policy to allow smoking. They want to take testimony from the Secretary of Agriculture about her conversations with the President about including such subsidies in the government's budget.  
  A team of Marines is working secretly to train North Korean farmers to overthrow their government.  
  Representatives from the United States and Russia have been meeting in secret to come up with a plan to reduce the spread of nuclear weapons.  
  Members of the California National Guard receive secret information that terrorists are planning to attack the Golden Gate Bridge in San Francisco.  
  The President's Secretary of Defense is going to give members of the Air Force's 777 Fighter Squadron secret strategic commands during a war.  
  An employee in the American embassy in Kenya has been secretly spying on the United States.  
  The first lady forms a task force on health care and insists that records of all of her meetings with government officials and health care providers are kept secret.  
  The Vice-President conceals the identity of persons with whom he consulted in developing the administration’s energy policy.  
  Accused of wrongdoing, the President claims that his aides can not be called to testify in grand jury proceedings.  
  The House Government Reform and Oversight Committee Requests Justice Department documents that are related to campaign finance abuses.  
  After pardoning several individuals, the President refuses to allow his top staff members to testify before a House panel investigating the pardons.  
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