The Presidential Communications Privilege
Executive privilege has several components. But its core is the presidential communications privilege, which protects presidential communications as well as communications authored or solicited and received by the President or his close advisers in furtherance of presidential decisionmaking. Yet despite the importance of this doctrine to the operation of government and case law, there is no full treatment of this topic in scholarship. This article fills that gap. It traces the history of the doctrine, focusing on the Nixon trilogy and In re Sealed Case. It analyzes open questions concerning the scope of the privilege, including how it applies to former presidents, who qualifies as a close adviser, what counts as a solicitation, and how far down the chain of government the privilege extends. It also argues for clarifying existing doctrine in several ways, including by imposing bright-line rules for who qualifies as a close adviser. Finally, the Article discusses the implications of this analysis on congressional oversight, litigation, and the separation of powers.
Cite as Michael K. Velchik, The Presidential Communications Privilege, 19 N.Y.U. J.L. & Liberty 1 (2025).