Article 2, Section 3 — Congressional Access To Presidential Information

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Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Presidents have claimed a right to withhold their communications from Congress since the start of the Republic.[1](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn1art2 " See In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997) ( “Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government.” ). ") Congress’s resistance to such claims, however, is equally grounded in history.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn2art2 " Disputes between Congress and the President over executive privilege can be traced back to the 1790s. See Mark J. Rozell, Executive Privilege: Presidential Power, Secrecy, and Accountability 31–32 (2002) (describing the House’s resistance to President Washington’s refusal to disclose information relating to the Jay Treaty). ") The resulting, recurring, and often prominent disagreements over what has come to be known broadly as “executive privilege” tend to place in opposition two implied and often competing constitutional principles: Congress’s right to obtain information necessary to carry out its legislative functions and the President’s interest in protecting the confidentiality of his (and sometimes his subordinates') communications.[3](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn3art2 " United States v. Nixon, 418 U.S. 683, 711 (1974) ( “Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.” ); Watkins v. United States, 354 U.S. 178, 187 (1957) ( “The power of the Congress to conduct investigations is inherent in the legislative process.” ). For a thorough discussion of the judicial treatment of executive privilege see Todd Garvey, Cong. Rsch. Serv., R47102, Executive Privilege and Presidential Communications: Judicial Principles (2022). ")

Unlike more traditional legal disagreements between parties, resolution of these interbranch executive privilege disputes has not historically come from the courts. Instead, when conflict has been avoided, it has typically been because of a process of compromise and accommodation in which absolute claims—for either access or confidentiality—are relinquished and replaced by a negotiated resolution acceptable to both Congress and the Executive.[4](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn4art2 " See In re Sealed Case, 121 F.3d at 729 ( “[G]iven the restrictions on congressional standing and the courts’ reluctance to interfere in political battles, few executive-congressional disputes over access to information have ended up in the courts.” ); see also Breaking the Logjam: Principles and Practice of Congressional Oversight and Executive Privilege, Hearing before the S. Comm. on the Judiciary, Subcomm. on Fed. Cts., Oversight, Agency Action and Fed. Rts., 117th Cong. (2021) (2021). ")

The traditional preference for political rather than judicial solutions is supported by the fact that neither Congress nor the President appears to have sought judicial resolution of an interbranch executive privilege dispute until the 1970s.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn5art2 " See S. Select Comm. On Presidential Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); see also James Hamilton, The Power to Probe: A Study of Congressional Investigations 197 (1976) (noting that the Senate Select Committee’s lawsuit to enforce the subpoena issued to President Nixon was “the first civil action to enforce a congressional subpoena issued to the executive” ). ") Courts have also been wary of judicially declared outcomes and have generally sought to avoid adjudicating executive privilege disputes, instead encouraging the political branches to settle their differences while noting that judicial intervention should, as a prudential matter, “be avoided whenever possible” or at least “delayed until all possibilities for settlement have been exhausted.” [6](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn6art2 " See Cheney v. U.S. Dist. Ct., 541 U.S. 913, 389 (2004) ( “These ‘occasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible” ); see also Todd Garvey, Cong. Rsch. Serv., LSB10432, Resolving Subpoena Disputes Between the Branches: Potential Impacts of Restricting the Judicial Role (2020). ")

As a result, the judiciary has historically played a limited role in determining how executive privilege may be used to restrict congressional access to information.[7](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn7art2 " In addition to other justiciability issues, the Speech or Debate Clause, which generally prevents direct pre-enforcement challenges to congressional subpoenas, also plays a role in limiting litigation connected to Congress’s investigatory powers. See Todd Garvey, Cong. Rsch. Serv., R45043, Understanding the Speech or Debate Clause (2017). ") The Supreme Court has never directly considered applying executive privilege in the context of a congressional investigation.[8](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn8art2 " See Trump v. Mazars USA, LLP, No. 19-760, slip op. at 2 (U.S. July 9, 2020) ( “We have never addressed a congressional subpoena for the President’s information.” ). ") Lower federal court decisions are similarly scarce.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn9art2 " There has been a recent increase in information access disputes between the branches making their way to the courts. See, e.g., Civil Enforcement of Congressional Authorities: Hearing before Subcomm. on Cts., Intell. Prop., and the Internet of the Comm. on the Judiciary, 117th Cong. (2021), (Statement of Todd Garvey). These cases have not, however, directly involved the merits of an interbranch executive privilege disputes. ") The only appellate-level decision to reach the merits of an executive privilege dispute between Congress and a sitting President occurred nearly fifty years ago during President Richard Nixon’s administration.[10](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn10art2 " See S. Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). The D.C. Circuit reached the merits of a dispute between a House committee and a former President in 2021. Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021), cert. denied, 142 S. Ct. 1350 (2022). ") In that case, the Senate Select Committee on Presidential Campaign Activities elected to seek a declaratory judgment in the courts with respect to the President’s obligations to obey its subpoenas.[11](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn11art2 " S, Select, 498 F.2d at 726. The House Judiciary Committee’s subpoenas were similarly rejected by the President, but instead of going to the courts for enforcement, the Committee adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas. President Nixon’s position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 Wkly. Comp. Pres. Docs. 592 (1974). The impeachment article and supporting material are set out in H. Rep. No. 93–1305, 93d Cong., 2d Sess. (1974). ")

Although not involving executive privilege, the Court in its 2020 decision, Trump v. Mazars, nevertheless recognized several important separation of powers-based limitations on Congress’s ability to access presidential records.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn12art2 " See Trump v. Mazars USA, LLP, No. 19-760, slip op. at 2 (U.S. July 9, 2020). ") Writing on behalf of the Court, Chief Justice John Roberts began by acknowledging three central limits on all congressional inquiries, regardless of the target of the inquiry: (1) there must be a valid legislative purpose related to a subject of legislation, (2) the purpose of the inquiry must not be for law enforcement or to expose for the sake of exposure, and (3) certain constitutional and common law privileges can limit disclosures of information.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn13art2 " Trump v. Mazars USA, LLP, No. 19-760, slip op. at 2 (U.S. July 9, 2020). ") The Court, however, viewed these limitations, standing alone, as inadequately checking Congress’s powers in a dispute with the Executive Branch.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn14art2 " Id. at 3. ") After all, according to Mazars, any paper possessed by a President could relate to a conceivable subject of legislation, possibly allowing Congress significant authority to interfere with the Executive Branch.[15](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn15art2 " Id. ")

Recognizing that the typical limits on the subpoena power did not prevent Congress from attempting to “aggrandize itself at the President’s expense,” the Chief Justice feared that judicial resolution of such a dispute using only those limits could deter negotiation between the two branches, historically the hallmark of such inquiries, and encourage Congress to seek compliance through the courts.[16](https://www.law.cornell.edu/constitution-conan/article-2/section-3/congressional-access-to-presidential-information#fn16art2 " Id. While the papers at stake in Mazars wer