Jan 6 hearing: What is executive privilege?

Donald Trump revoked Steve Bannon‘s executive privilege which the latter said stopped him from complying with the Jan 6 select committee subpoena, as part of their investigation into then-president Trump’s involvement in the Capitol Hill insurrection.

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Executive Privilege: 

Executive privilege refers to the President’s and other executive branch officials’ ability to withhold certain types of confidential communication from the courts and the legislative branch.

It is asserted by the executive branch in response to a request from another branch of government. When executive privilege is invoked in court, the court should consider its applicability by weighing competing interests.

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It is not mentioned in the constitution, but courts have recognised its existence, and stems from the principle of separation of powers: if Congress or the courts could demand any executive-branch communication at any time, the executive would no longer be fundamentally equal in power to the other two branches.

In common law, executive privilege stems from the concept of ‘process privilege,’ or the protection of administrative officials while carrying out their official duties. The logic behind process privilege is that if administrative officials acting in their official capacities were subject to investigation, such a threat would chill the administrative process.

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It has long been debated what kind of communication can be withheld. The executive has a broad view of privilege, which the other two branches have contested. Because the parties involved saw executive-privilege issues as more political than legal, these disputes were frequently settled through negotiation rather than legal wrangling.

Claims made to obstruct the conduct of a criminal investigation or claims made to protect activities that are not part of an official’s governmental responsibilities are examples of court-ordered exceptions to executive privilege. It is also possible (though not firmly established) that executive privilege claims apply only to the president and his staff, rather than to the activities of the entire executive branch.