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   Congressional                                                                 _____
          A Research Service
   In~forming the Ieg~iative debate since 1914

Executive Privilege and Individuals outside

the Executive Branch

October 9, 2019
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.

Use of Executive Privilege
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.

Assertion of Privilege Regarding Kris Kobach

On June 3, 2019, staff of the House Committee on Oversight and Reform conducted a voluntary,
transcribed interview with Kris Kobach on his role in the Trump Administration's efforts to add a
citizenship question to the 2020 census. Kobach declined to answer some questions posed by the staff
because the Administration had instructed him not to answer questions regarding his communications
with President Trump, citing executive privilege. The White House had also directly informed the
committee of its position in a letter from Deputy White House Counsel Michael M. Purpura to the
Chairman Elijah Cummings on May 21, 2019.

                                                                Congressional Research Service

Prepared for Members and
Committees of Congress

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