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Executive Privilege and Individuals outside the Executive Branch – Executive Privilege and Individuals outside the Executive Branch October 9, 2019 IN11177 – “White House assertions of executive privilege for presidential communications have historically been confined to individuals who were executive branch employees when those communications occurred. While the idea that executive privilege could extend to individuals outside the executive branch predates the Trump Administration, it appears that recent testimony by Kris Kobach, former Kansas Secretary of State, and Corey Lewandowski, former manager of Donald Trump’s 2016 presidential campaign, are likely the first times the executive branch has actually made such an assertion to Congress. For decades, Presidents have asserted executive privilege by instructing current and former executive branch officials to refuse to respond to congressional questions about communications with the President and the deliberations of the executive branch. While the Supreme Court recognized in United States v. Nixon that the privilege is rooted in the Constitution, it also held that the privilege is not absolute and that the value of confidentiality within the executive branch needs to be balanced against the other branches’ need for information. While the Nixon decision related only to court access to presidential records, this principle has also applied to congressional access. Since that time, Congress and the executive branch have developed a shared understanding of some aspects of executive privilege through decades of negotiations and the precedents established by self-imposed limits on executive privilege in prior presidential Administrations…”

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