Privilege watch: Framing standards to evaluate the grant of presidential communication privilege in a legislative inquiry

Executive privilege is the prerogative that permits the president and high-level executive branch officials to withhold information from the Court or the Congress, and ultimately, the public. Such is designed to protect confidential military or diplomatic operations and private communications between the president and his close aides. The privilege, though not explicitly mentioned in the Constitution, is claimed by the president as an inherent power based on the separation of powers doctrine. Such doctrine states that the president and other high officials of the executive branch of government cannot legally be forced to disclose their confidential communications when such disclosure would hamper the operations or procedures of the executive branch. A genus of executive privilege includes the presidential communications privilege. The prerogative specifically protects from disclosure any communications made either by the President directly or by his immediate advisors to the President. As held in various United States Court rulings, the privilege is supported by the need for candor in executive branch decision-making and in the supremacy of each branch within its own assigned area of constitutional duties. The concept has evolved over the years as presidents have claimed it. Virtually all disputes were resolved by mutual accommodation until the twentieth century. In recent years, the judiciary has been playing a key role in passing judgment concerning executive privilege and has increasingly become a standard-setter. Because executive privilege, particularly presidential communications privilege, is merely construed from the Constitution and due to the frequent abuse of such power, the subject is conflict-ridden. While the Courts have attempted to refine the notion of presidential communications privilege as they ruled these claims, there is still substantial debate about its proper scope and limits in the context of an inquiry in aid of legislation. When Congress and the executive spar over privilege issues, resolutions of the court on the conflict have not yielded precise formulations. And while grounds for its invocation have been laid down by the Courts in its decisions, no specific tests have been formulated to evaluate whether a claim of such privilege should be sustained or not. The infrequent executive-legislative conflicts that have reached the Courts ended inconclusive. This paper traces the historical development of the meaning and scope of executive privilege, emphasizing on presidential communications privilege, as held by both the United States and the Philippine Supreme Court. The purpose is to highlight the significance of jurisprudence in shaping what is now a powerful tool claimed by presidents in shielding themselves from inquiry and scrutiny. On the contrary, the paper identifies the myriad of issues left unresolved by the Courts when faced by an invocation of presidential communications privilege in light of the scope of Congress broad investigative power. Furthermore, this thesis is designed to reinstate the privilege to a scope more in keeping with its status as a form of evidentiary privilege rather than a presumed privilege. The end product of this paper then is to establish well-defined standards to guide the Supreme Court in deciding whether to grant presidential communication privilege once invoked in a legislative inquiry