Congressional Requests for

Confidential Executive Branch Information

This memorandum summarizes the principles and practices governing congressional 

requests for confidential executive branch information.

June 19, 1989

Mem o ra nd um O pinio n fo r t h e

G e n er a l C o u n sel’s C onsultative G r o u p

This memorandum summarizes the principles and practices governing congressional requests for confidential executive branch information. As 

discussed below, the executive branch’s general practice has been to 

attempt to accommodate whatever legitimate interests Congress may have in obtaining the information, while, at the same time, preserving 

executive branch interests in maintaining essential confidentiality. Only 

when the accommodation process fails to resolve a dispute and a sub­ poena is issued does it become necessary for the President to consider 

asserting executive privilege.

I. Congress’ Oversight Authority

The constitutional role of Congress is to adopt general legislation that 

will be implemented — “executed” — by the executive branch. The 

courts have recognized that this general legislative interest gives 

Congress investigatory authority. Both Houses of Congress have power, 

“through [their] own process, to compel a private individual to appear 

before it or one of its committees and give testimony needed to enable it 

efficiently to exercise a legislative function belonging to it under the 

Constitution.” McGrain v. Daugherty, 273 U.S. 135, 160 (1927). The 

issuance of subpoenas in aid of this function “has long been held to be a 

legitimate use by Congress of its power to investigate,” Eastland v.

United States Serviceman’s Fund, 421 U.S. 491, 504 (1975), provided 

that the investigation is “related to, and in furtherance of, a legitimate 

task of the Congress.” Watkins v. United States, 354 U.S. 178, 187 (1957). 

The inquiry must pertain to subjects “on which legislation could be had.” 

McGrain v. Daugherty, 273 U.S. at 177. Thus, Congress’ oversight 

authority

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is as penetrating and far-reaching as the potential power to 

enact and appropriate under the Constitution.

Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into those areas 

in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive 

province of one of the other branches of the Government.

Barenblatt v. United States, 360 U.S. 109, 111-12 (1959).

II. Executive Privilege

If it is established that Congress has a legitimate legislative purpose for 

its oversight inquiry, the executive branch’s interest in keeping the information confidential must be assessed. This subject is usually discussed in 

terms of “executive privilege,” and that convention is used here. The 

question, however, is not strictly speaking just one of executive privilege. 

While the considerations that support the concept and assertion of executive privilege apply to any congressional request for information, the 

privilege itself need not be claimed formally vis-a-vis Congress except in 

response to a lawful subpoena; in responding to a congressional request 

for information, the executive branch is not necessarily bound by the limits of executive privilege.

Executive privilege is constitutionally based. To be sure, the Constitution nowhere expressly states that the President, or the executive 

branch generally, ei\joys a privilege against disclosing information 

requested by the courts, the public, or the legislative branch. The existence of such a privilege, however, is a necessary corollary of the executive function vested in the President by Article II of the Constitution.1 It 

has been asserted by numerous Presidents from the earliest days of our 

Nation, and it was explicitly recognized by the Supreme Court in United

States v. Nixon, 418 U.S. 683, 705-06 (1974).

There are at least three generally-recognized components of executive 

privilege: state secrets, law enforcement, and deliberative process. Since 

most disputes with Congress in this area in recent years have concerned 

the privilege for executive branch deliberations, this memorandum will 

focus on that component. See generally Confidentiality of the Attorney

General’s Communications in Counseling the President, 6 Op. O.L.C. 

481, 484-90 (1982).

1 The privilege to withhold information is implicit in the scheme of Article II and particularly in the provisions that “(t]he executive Power shall be vested in a President of the United States of America," U S 

Const, art. II, § 1, cl. 1, and that the President shall “take Care that the Laws be faithfully executed,” U.S. 

Const, art. II, § 3.

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The first congressional request for information from the executive 

branch occurred in 1792, in the course of a congressional investigation 

into the failure of an expedition under the command of one General St. 

Clair. President Washington called his Cabinet together to consider his 

response, stating that he could conceive that there might be papers of so 

secret a nature that they ought not be given up. The President and his 

Cabinet concluded “that the Executive ought to communicate such

papers as the public good would permit, and ought to refuse those, the

disclosure of which would injure the public.” 1 Writings of Thomas

Jefferson 304 (1903) (emphasis added). While President Washington ultimately determined in the St. Clair case that the papers requested could be 

furnished without ii\jury to the public, he refused four years later to comply with a House committee’s request for copies of instructions and other 

documents employed in connection with the negotiation of a treaty with 

Great Britain.

The practice of refusing congressional requests for information, on the 

ground that the national interest would be harmed by the disclosure, was 

employed by many Presidents in the ensuing years. See generally History

of Refusals by Executive Branch Officials to Provide Information

Demanded by Congress, Part I - Presidential Invocations of Executive

Privilege Vis-a-Vis Congress, 6 Op. O.L.C. 751 (1982). The privilege was 

most frequently asserted in the areas of foreign affairs and military and national security secrets; it was also invoked in a variety of other contexts, including executive branch investigations. In 1954, in instructing the Secretary of Defense concerning a Senate investigation, President 

Eisenhower asserted that the privilege extends to deliberative communications within the executive branch:

Because it is essential to efficient and effective administration that employees of the Executive Branch be in a position to be completely candid in advising with each other on 

official matters, and because it is not in the public interest 

that any of their conversations or communications, or any 

documents or reproductions, concerning such advice be 

disclosed, you will instruct employees of your Department 

that in all of their appearances before the Subcommittee of 

the Senate Committee on Government Operations regarding the inquiry now before it they are not to testify to any 

such conversations or communications or to produce any 

such documents or reproductions.

Pub. Papers of Dwight D. Eisenhower 483-84 (1954).

The Supreme Court has recognized that the Constitution gives the 

President the power to protect the confidentiality of executive branch 

deliberations. See generally Nixon v. Administrator of Gen. Servs., 433

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U.S. 425, 446-55 (1977). This power is independent of the President’s 

power over foreign affairs, national security, or law enforcement; it is 

rooted instead in “the necessity for protection of the public interest in 

candid, objective, and even blunt or harsh opinions in Presidential decisionmaking.” United States v. Nixon, 418 U.S. at 708.

It necessarily follows — and the Supreme Court so held in United

States v. Nixon — that communications among the President and his 

advisers eryoy “a presumptive privilege” against disclosure in court. Id.2

The reasons for this privilege, the Nixon Court explained, are “plain.” 

“Human experience teaches that those who expect public dissemination 

of their remarks may well temper candor with a concern for appearances 

and for their own interests to the detriment of the decisionmaking 

process.” Id. at 705. Often, an adviser’s remarks can be fully understood 

only in the context of a particular debate and of the positions others have 

taken. Advisers change their views, or make mistakes which others correct; this is indeed the purpose of internal debate. The result is that advisers are likely to be inhibited if they must anticipate that their remarks will 

be disclosed to others, not party to the debate, who may misunderstand 

the significance of a particular statement or discussion taken out of context. Some advisers may hesitate — out of self-interest — to make 

remarks that might later be used against their colleagues or superiors. As 

the Court stated, “[a] president and those who assist him must be free to 

explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” Id. at 708.

These reasons for the constitutional privilege have at least as much 

force when it is Congress, instead of a court, that is seeking information. 

The possibility that deliberations will be disclosed to Congress is, if any­ thing, more likely to chill internal debate among executive branch advisers. When the Supreme Court held that the need for presidential communications in the criminal trial of President Nixon’s close aides outweighed 

the constitutional privilege, an important premise of its decision was that 

it did not believe that “advisers will be moved to temper the candor of 

their remarks by the infrequent occasions of disclosure because of the 

possibility that such conversations will be called for in the context of a 

criminal prosecution.” Id. at 712. By contrast, congressional requests for 

executive branch deliberative information are anything but infrequent.

2 The Nixon Court explained that the privilege is constitutionally based:

[T]he privilege can be said to derive from the supremacy of each branch within its own 

assigned area of constitutional duties. Certain powers and privileges flow from the nature of 

enum erated powers; the protection o f the confidentiality of Presidential communications has 

similar constitutional underpinnings.

418 U.S. at 705-06 (footnote omitted). The Court also acknowledged that the privilege stems from the 

principle of separation of powers: “The privilege is fundamental to the operation of Government and 

inextncably rooted in the separation of pow ers under the Constitution.” Id at 708.

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Moreover, compared to a criminal prosecution, a congressional investi­ gation is usually sweeping; its issues are seldom narrowly defined, and 

the inquiry is not restricted by the rules of evidence. Finally, when 

Congress is investigating, it is by its own account often in an adversarial 

position to the executive branch and initiating action to override judgments made by the executive branch. This increases the likelihood that 

candid advice from executive branch advisers will be taken out of context or misconstrued. For all these reasons, the constitutional privilege 

that protects executive branch deliberations against judicial subpoenas 

must also apply, perhaps even with greater force, to Congress’ demands for information.

The United States Court of Appeals for the District of Columbia Circuit 

has explicitly held that the privilege protects presidential communications against congressional demands. During the Watergate investigation, 

the Court of Appeals rejected a Senate committee’s efforts to obtain tape 

recordings of conversations in President Nixon’s offices. The court held 

that the tapes were constitutionally privileged and that the committee 

had not made a strong enough showing to overcome the privilege. Senate

Select Comm, on Presidential Campaign Activities v. Nixon, 498 F.2d 

725 (D.C. Cir. 1974) (en banc). Indeed, the court held that the committee 

was not entitled to the recordings unless it showed that “the subpoenaed 

evidence is demonstrably critical to the responsible fulfillment of the 

Committee’s functions.” Id. at 731 (emphasis added).3

Finally, history is replete with examples of the executive’s assertion of 

privilege in the face of congressional requests for deliberative process 

information. We have previously recounted the incidents in which 

Presidents, beginning with President Washington, have withheld from 

Congress documents that reflected deliberations within the executive branch. History of Refusals by Executive Branch Officials to Provide

Information Demanded by Congress, Part II - Invocations of Executive

Privilege by Exective Officials, 6 Op. O.L.C. 782 (1982).

III. Accommodation Process

Where Congress has a legitimate need for information that will help it 

legislate, and the executive branch has a legitimate, constitutionally recognized need to keep certain information confidential, at least one court

3 The Supreme Court has assumed that the constitutional privilege protects executive branch deliberations against Congress to some degree. See United States v Nixon, 418 U S at 712 n 19. Moreover, the 

Court held in Administrator of General Services, that the constitutional privilege protects executive 

branch deliberations from disclosure to members of the same branch in a later administration, the Court 

rejected the specific claim of privilege in the case not because the privilege was inapplicable but because 

the intrusion was limited and the interests justifying the intrusion were strong and nearly unique. See 433 

U S at 446-55. Since the Court has held that the privilege protects executive branch communications 

against compelled disclosure to the judicial branch and to later members of the executive branch, there is 

every reason to believe that the Court would hold that it protects against compelled disclosure to Congress

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has referred to the obligation of each branch to accommodate the legitimate needs of the other. This duty to accommodate was described by the

D.C. Circuit in a case involving a House committee’s request to a private 

party for information which the executive branch believed should not be 

disclosed. The court said:

The framers ... expect[ed] that where conflicts in scope of 

authority arose between the coordinate branches, a spirit of 

dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system. Under this 

view, the coordinate branches do not exist in an exclusively 

adversary relationship to one another when a conflict in 

authority arises. Rather, each branch should take cognizance 

of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the 

conflicting branches in the particular fact situation.

[Because] it was a deliberate feature of the constitutional 

scheme to leave the allocation of powers unclear in certain 

situations, the resolution of conflict between the coordinate 

branches in these situations must be regarded as an opportunity for a constructive modus vivendi, which positively 

promotes the functioning of our system. The Constitution 

contemplates such accommodation. Negotiation between 

the two branches should thus be viewed as a dynamic 

process affirmatively furthering the constitutional scheme.

United States v. AT&T, 567 F.2d 121, 127, 130 (D.C. Cir. 1977) (footnotes 

omitted). In an opinion he issued in connection with a 1981 executive privilege 

dispute involving a committee of the House of Representatives and the 

Department of Interior, Attorney General William French Smith captured 

the essence of the accommodation process:

The accommodation required is not simply an exchange of 

concessions or a test of political strength. It is an obligation 

of each branch to make a principled effort to acknowledge, 

and if possible to meet, the legitimate needs of the other 

branch.

Assertion of Executive Privilege in Response to a Congressional

Subpoena, 5 Op. O.L.C. 27, 31 (1981) (“Smith Opinion”).

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The process of accommodation requires that each branch explain to 

the other why it believes its needs to be legitimate. Without such an 

explanation, it may be difficult or impossible to assess the needs of one 

branch and relate them to those of the other. At the same time, requiring such an explanation imposes no great burden on either branch. If either 

branch has a reason for needing to obtain or withhold information, it 

should be able to express it.

The duty of Congress to justify its requests not only arises directly from the logic of accommodation between the two branches, but it is established in the case law as well. In United States v. Nixon, the Supreme 

Court emphasized that the need for evidence was articulated and specific. 

418 U.S. at 700-02, 713. Even more to the point is Senate Select Committee

on Presidential Campaign Activities. In that case, the D.C. Circuit stated 

that the sole question was “whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee’s functions.” 498 F.2d at 731. The court held that the Committee had not made a sufficient showing. It pointed out that the President had already released transcripts of the conversations of which the Committee was seeking recordings. The Committee argued that it needed the tape recordings “in order to 

verily the accuracy of’ the transcripts, to supply the deleted portions, and to gain an understanding that could be acquired only by hearing the inflection and tone of voice of the speakers. Id. at 723-33. But the court answered 

that, in order to legislate, a committee of Congress seldom needs a “precise 

reconstruction of past events.” Id. at 732. The court concluded:

The Committee has ... shown no more than that the mate­ rials deleted from the transcripts may possibly have some 

arguable relevance to the subjects it has investigated and to 

the areas in which it may propose legislation. It points to no 

specific legislative decisions that cannot responsibly be 

made without access to materials uniquely contained in the 

tapes or without resolution of the ambiguities that the transcripts may contain.

Id. at 733. For this reason, the court stated, “the need demonstrated by 

the Select Committee ... is too attenuated and too tangential to its functions” to override the President’s constitutional privilege. Id.

Senate Select Committee thus establishes Congress’ duty to articulate its 

need for particular materials — to “point[] to ... specific legislative decisions that cannot responsibly be made without access to materials uniquely contained in” the privileged document it has requested. Moreover, this 

case suggests that Congress will seldom have any legitimate legislative 

interest in knowing the precise predecisional positions and statements of 

particular executive branch officials. When Congress demands such infor­ mation, it must explain its need carefully and convincingly.

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It is difficult to generalize about the kind of accommodation with 

respect to deliberative process information that may be appropriate in 

particular cases. Whether to adhere to the consistent general policy of 

confidentiality for such information will depend on the facts of the specific situation. Certain general principles do apply, however. As Attorney 

General Smith explained in advising President Reagan:

[T]he interest of Congress in obtaining information for 

oversight purposes is ... considerably weaker than its interest when specific legislative proposals are in question. At 

the stage of oversight, the congressional interest is a generalized one of ensuring that the laws are well and faithfully 

executed and of proposing remedial legislation if they are 

not. The information requested is usually broad in scope 

and the reasons for the request correspondingly general 

and vague. In contrast, when Congress is examining specific proposals for legislation, the information which 

Congress needs to enable it to legislative effectively is usually quite narrow in scope and the reasons for obtaining 

that information correspondingly specific. A specific, articulated need for information will weigh substantially more 

heavily in the constitutional balancing than a generalized 

interest in obtaining information.

Smith Opinion, 5 Op. O.L.C. at 30. Moreover, Attorney General Smith 

explained, information concerning ongoing deliberations need rarely be 

disclosed:

[T]he congressional oversight interest will support a 

demand for predecisional, deliberative documents in the 

possession of the Executive Branch only in the most unusual circumstances. It is important to stress that congressional oversight of Executive Branch actions is justifiable only 

as a means of facilitating the legislative task of enacting, 

amending, or repealing laws. When such “oversight” is used 

as a means of participating directly in an ongoing process of 

decisionmaking within the Executive Branch, it oversteps 

the bounds of the proper legislative function. Restricted to 

its proper sphere, the congressional oversight function can 

almost always be properly conducted with reference to 

information concerning decisions which the Executive 

Branch has already reached. Congress will have a legitimate 

need to know the preliminary positions taken by Executive 

Branch officials during internal deliberations only in the 

rarest of circumstances. Congressional demands, under the

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guise of oversight, for such preliminary positions and deliberative statements raise at least the possibility that the 

Congress has begun to go beyond the legitimate oversight 

function and has impermissibly intruded on the Executive 

Branch’s function of executing the law. At the same time, 

the interference with the President’s ability to execute the 

law is greatest while the decisionmaking process is ongoing.

Id. at 30-31.

IV. Procedures

President Reagan’s November 4, 1982 Memorandum for the Heads of 

Executive Departments and Agencies on “Procedures Governing 

Responses to Congressional Requests for Information” (“Reagan 

Memorandum”) sets forth the long-standing executive branch policy in 

this area:

The policy of this Administration is to comply with Congressional requests for information to the fullest extent 

consistent with the constitutional and statutory obligations 

of the Executive Branch.... [E]xecutive privilege will be 

asserted only in the most compelling circumstances, and 

only after careful review demonstrates that assertion of the 

privilege is necessary. Historically, good faith negotiations 

between Congress and the executive branch have minimized the need for invoking executive privilege, and this 

tradition of accommodation should continue as the primary means of resolving conflicts between the Branches.

Reagan Memorandum at 1. The Reagan Memorandum also sets forth the 

procedures for asserting executive privilege in response to a congressional request for information. Under the terms of the Memorandum, an 

agency must notify and consult with the Attorney General, through the 

Assistant Attorney General for the Office of Legal Counsel, as soon as it 

determines that compliance with the request raises a “substantial question of executive privilege.” The Memorandum further provides that 

executive privilege cannot be asserted without specific authorization by 

the President, based on recommendations made to him by the concerned 

agency head, the Attorney General, and the Counsel to the President.

In practice, disputes with Congress in this area typically commence 

with an informal oral or written request from a congressional committee 

or subcommittee for information in the possession of the executive 

branch. Most such requests are honored promptly; in some cases, however, the executive branch official may resist supplying some or all of the

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requested information either because of the burden of compliance or 

because the information is o f a sensitive nature. The executive branch 

agency and the committee staff will typically negotiate during this period 

to see if the dispute can be settled in a manner acceptable to both sides. 

In most cases this accommodation process is sufficient to resolve any 

dispute. On occasion, however, the process breaks down, and a subpoena is issued. At that point, if further negotiation is unavailing, it is necessary to consider asking the President to assert executive privilege.

If after assertion of executive privilege the committee remains unsatisfied with the agency’s response, it may vote to hold the agency head in 

contempt of Congress. If the full Senate or House of Representatives then 

votes to hold the official in contempt, it might attempt to impose sanctions by one of three methods. First, it might refer the matter to a United 

States Attorney for reference to a grand jury. See 2 U.S.C. §§ 192, 194. 

Second, the Sergeant-at-Arms theoretically could be dispatched to arrest 

the official and detain him in the Capitol; if this unlikely event did occur, 

the official would be able to test the legality of this detention through a 

habeas corpus petition, thereby placing in issue the legitimacy of his 

actions in refusing to disclose the subpoenaed information. Third, and 

the most likely option due to legal and practical difficulties associated 

with the first two options, the Senate or House might bring an action in 

court to obtain a judicial order requiring compliance with the subpoena 

and contempt of court enforcement orders if the court’s order is defied.

WILLIAM P. BARR

Assistant Attorney General

Office o f Legal Counsel

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