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.


Directions

Read each "secret" listed in this handout. 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.