Questions about what information the White House should provide Congress or withhold as a matter of “executive privilege” have, once again, come to the fore – this time in the context of congressional investigations of efforts to overturn the 2020 election. What follows is a detailed, reverse-chronological account of instances in which past Republican and Democratic administrations have disclosed presidential records to Congress, with or without initially invoking executive privilege. Often Congress and the White House negotiated resolutions to disagreements over documents that were initially withheld by the president as privileged. In some cases, the assertions of privilege led to lengthy court challenges that resulted in releases of documents under court orders – years after the request was made.
The ongoing congressional investigations have also raised questions of the ability of former presidents to withhold from Congress records created during their administration. In Nixon v. Administrator of General Services, the Supreme Court adopted the view of the Solicitor General that “the privilege survives the individual President’s tenure” but did not address these broader questions. As included in the lists below, the historical record includes significant examples of incumbent presidents turning over a former president’s records.
What follows is a compilation of prior disclosures of presidential records to Congress. The list below is not intended to be comprehensive. Rather, it provides significant examples of presidential records that have been released to Congress, either in the legislative body’s oversight capacity or in the Senate’s advice and consent role. These examples fall into three categories: (1) disclosure of a former president’s White House records by the incumbent president in the course of congressional investigations, (2) disclosure of an incumbent White House’s presidential records in the course of significant congressional investigations, and (3) disclosure of presidential records in nominations processes for nominees with prior executive branch service.
Disclosure of a Prior Administration’s Presidential Records by the Incumbent White House
Interrogation Techniques (Obama/Bush II, report released in 2014)
- The Senate Intelligence Committee conducted an investigation of the CIA’s enhanced interrogation techniques and efforts to mislead the public and the White House regarding the techniques. Senator Dianne Feinstein chaired the committee.
- President George W. Bush had invoked executive privilege over White House documents on the issue.
- President Barack Obama chose to release the documents to the public shortly after taking office as part of an ongoing court case. The Senate’s 2014 report incorporated the documents, including OLC Memos.
9/11 Commission (Bush II, report released 2004)
- The bipartisan 9/11 Commission was charged with creating a full account of the circumstances surrounding the 9/11 attacks.
- The George W. Bush administration turned over some documents from both the Bush and Clinton administrations, but withheld others. Notably, lawyers for former President Clinton were surprised by this refusal. Bruce Lindsey disagreed with the decision and worried it would cause the Commission to make inaccurate judgments about the Clinton administration’s actions. The Bush White House ultimately acquiesced to the review and disclosure of some of the withheld documents.
- The Bush White House said they withheld other documents because they were duplicative and ”highly sensitive.”
- The Commission sent document requests to the White House. At one point the Commission threatened to issue subpoenas to get the documents it needed, such as the President’s Daily Brief. The documents provided included:
- National-security documents gathered by the National Archives from the files of the Clinton administration;
- Documents about Al Qaeda, Osama bin Laden and the government’s counterterrorism policies;
- Foreign Policy documents.
Clinton Pardons (Clinton, report published 2002)
- The Republican-led Committee on Government Reform investigated President Clinton’s pardons of Marc Rich and Pincus Green.
- Under the George W. Bush administration, DOJ produced sensitive information, including U.S. Parole Commission files related to Rosario Gambino and a summary of an FBI interview with Roger Clinton.
- Former President Clinton did not oppose release of documents or testimony related to the pardons he granted. The Bush administration, however, prevented the National Archives from producing certain information related to the Clinton pardons, but some of that information was disclosed “inadvertently” by the National Archives, including information about several other individuals who had sought clemency.
- The committee obtained:
- Financial records;
- Written notes.
Church Committee (Ford, 1975)
- The Church Committee investigated surveillance activities by the CIA, FBI, and NSA after allegations in the New York Times that the CIA had been investigating anti-war activists for over a decade. The Senate Select Committee on Intelligence conducted the investigation, led by Chairman Frank Church, a Democrat of Idaho. The committee requested documents by subpoena.
- The Ford administration refused to turn over Nixon’s papers on the Hurston Plan.
- After Secretary Kissinger’s testimony, the White House reached an agreement with the senators as to which documents to turn over.
- Notably, as part of the compromise, lawyers for former President Richard M. Nixon would review the Nixon papers and produce those that deal with United States‐Chilean policy in 1970 and domestic intelligence plan.
- Nixon and his lawyers provided answers to interrogatories to the committee.
- The documents produced included:
- Minutes of the secret “40 committee” on matters involving the Nixon administration’s efforts to effect a military takeover in Chile in the fall of 1970.
Kissinger Contempt (Ford, 1975)
- The House Select Committee on Intelligence investigated the NSC, CIA, and Secretary of State Henry Kissinger for covert military activities. Ford asserted executive privilege saying, “the documents revealed to an unacceptable degree the consultation process involving advice and recommendations to Presidents Kennedy, Johnson and Nixon, made to them directly or to committees composed of their closest aides and counselors.” The White House and Congress negotiated for the committee to receive an oral reading of the documents.
- The documents included:
- Recommendations on national security from the Secretary.
- Communications between lower ranking officials of the executive branch.
- The documents included:
Disclosure of an Incumbent White House’s Presidential Records in Significant Congressional Investigations
Ukraine Investigation (Trump 2017-2019)
- Six committees in the House of Representatives, under Democratic control, conducted formal impeachment proceedings.
- The Judiciary sent a letter requesting documents to 81 agencies, individuals, and other entities.
- Attorney General Barr refused to release the Mueller Report’s findings related to the Ukraine investigation. Congress subpoenaed the report and Barr continued to resist. Congress voted to hold Barr in contempt. Eventually, Barr released a redacted version of the report.
- The White House released selected documents, including a not-verbatim transcript of a phone conversation between Trump and President Zelenskyy. Besides this document, the House Judiciary Committee accused the White House of not producing a single document in response to any of their subpoenas.
Benghazi (Obama, 2016)
- Seven different committees investigated the Benghazi attacks, including the Republican-led House Select Committee. The House Select Committee subpoenaed records from the State Department.
- The State Department cited “institutional interests” and “confidentiality” as a reason to withhold some documents. But the State Department was committed to discussions with the committee to get the information that they need without “chilling confidential executive-branch communications.”
- The documents turned over included:
- Emails of Secretary Clinton and other high level officials;
- Watch logs from State Department Operations Center;
- Over 100,000 pages of documents (See Appendix J of the committee report, which identifies the categories of documents requested.);
- Many of the documents were turned over as read only/read and return or only viewable in a reading room.
- The Obama administration also made available for interviews key officials, agents involved with Benghazi, and other requested agency employees.
Solyndra (Obama, 2011-2012)
- The Republican-led Committee on Energy and Commerce investigated a Department of Energy loan to Solyndra. The White House provided emails that showed the White House was concerned with the financial health of the company. The House then requested all internal communications. The White House rejected the subpoena on the grounds that it was overly broad, but President Obama did not formally invoke executive privilege. The House then voted along party lines to subpoena the records from the White House. The White House provided 135 pages of documents, but it withheld about a dozen pages of documents because they were internal deliberations while offering to make these documents available for committee review. The House then threatened to hold a contempt vote, and the White House turned over additional documents, ending the standoff.
- The documents included:
- Emails between the White house and DOE;
- Some internal communications.
Fast and Furious (Obama, 2011-2019 – an initial production of documents, additional documents were produced under court order in 2014 and 2019)
- The Republican-led House Oversight and Government Reform Committee investigated the Department of Justice’s Operation Fast and Furious Program. President Obama invoked executive privilege over some documents – his first assertion of executive privilege to Congress.
- Before the House held Attorney General Eric Holder in contempt after he refused to produce certain documents, the Department of Justice had already turned over over 7,600 pages of documents related to Fast and Furious and 1,300 pages of internal deliberative documents related to Senator Grassley’s letter on Feb. 4, 2011. The documents disclosed by the White House included communications between ATF managers and the White House In addition, Holder had already testified before Congress nine times on the issue, and DOJ had made two dozen officials available for hearings and interviews.
- After holding Holder in contempt, the House Oversight and Government Reform Committee filed a lawsuit in 2012 over the withheld documents. DOJ turned over nearly 65,000 pages in 2014 under a court order and additional pages in 2016, as ordered by the judge in the case. In 2019, the Democratic-led House and Trump administration’s Justice Department reached a settlement that stated they were abandoning their appeals while maintaining their disagreements with the judge’s ruling.
Death of Patrick Tillman (Bush II, 2008)
- The Democratic-led House Committee on Oversight and Government Reform investigated misleading information on the death of Patrick Tillman by friendly fire. The committee was chaired by Representative Henry Waxman.
- The committee requested all White House documents related to Corporal Tillman.
- The White House initially refused to produce documents that “implicate Executive branch confidentiality interests.” But ultimately, the White House provided 1,500 pages of emails and other documents. It only withheld drafts of a speech made by President Bush.
CIA Leak/ Valerie Plame Affair (outcome: FOIA release) (Bush II, 2007)
- The House Committee on Oversight and Reform, again led by Representative Waxman, investigated the leak of Valerie Plame’s identity.
- The committee requested documents related to the leak from the Special Counsel, but the White House prevented the documents from being released.
- The committee issued a subpoena for some of the documents, including an interview with Vice President Cheney. The White House asserted executive privilege over interviews of Vice President Cheney. Waxman threatened to hold Mukasey in contempt for not producing the documents. The standoff stalled the investigation.
- The documents were eventually released but pursuant to a FOIA request.
Bush-U.S. Attorney Firing (Bush II, 2006-2008)
- The Democratic-led Senate Judiciary Committee and House Judiciary Committee investigated Bush’s firing of several U.S. Attorneys. The committee subpoenaed several officials to testify before the committee, including White House Counsel Harriet Miers.
- The White House refused to comply with the subpoenas for documents, instead offering to have the committee speak to officials behind closed doors and not under oath.
- At least one aide testified, but invoked privilege in response to specific questions. Bush asserted that White House deliberations about the matter were protected by executive privilege, and Miers refused to appear before the committee. The dispute made it to court, and Miers and Karl Rove eventually agreed to testify before the House Judiciary Committee.
- The Justice Department released emails and interviews to the House Judiciary Committee.
- The committee also subpoenaed Karl Rove for his emails related to the matter. These emails were publicly reported as “lost” and never turned over.
Clinton Impeachment (Clinton, 1998-1999)
- The Republican-controlled House Judiciary Committee led the impeachment inquiry. The House Speaker at the time was Newt Gingrich. Independent Counsel Ken Starr submitted a report and 18 boxes of supporting documents to the House. The Clinton Administration had turned over 90,000 pages of documents to the independent counsel in the course of its investigation.
- Documents produced for Ken Starr included:
- Notes between the President and Monica Lewinsky;
- Direct testimony;
- White House and secret service records;
- Appointment diaries;
- Telephone and financial records.
- Documents produced for Ken Starr included:
- President Clinton dropped his claim of executive privilege in the Lewinsky investigation.
Gore Campaign Calls (Clinton, 1997)
- The Republican-led Senate Government Affairs Committee investigated the Gore and Clinton re-election campaign fundraising in the 1996 election.
- Documents turned over included:
- The White House produced some documents voluntarily. The committee considered sending a subpoena to Clinton but ultimately decided not to. Chairman Fred Thompson said, “we’re not going to press the issue. I think that if he declines, that is his decision to make. I wish he wouldn’t, but, since he’s taken that position, I think we’re going to leave it at that.”
- White House Counsel said that if the president testified, it would “raise concerns about separation of powers between the executive and legislative branches,” but added that, “the White House remains willing to cooperate with the committee, as we have over the past eight months, and to provide information that is responsive to the committee’s legitimate oversight and investigative concerns.”
Espy (Clinton, 1994)
- The Office of Independent Counsel investigated Secretary of Agriculture Mike Espy for potential illegal payments. The White House first conducted its own investigation. When the OIC subpoenaed the underlying documents of the report, Clinton withheld 84 of the documents, claiming executive privilege. A resulting court case held that the documents were not privileged.
- The documents included:
- Information from Department of Agriculture attorneys;
- Statements from Secretary Espy to the White House;
- Documents that were not prepared for or by the president.
Travelgate (Clinton, 1993-1996)
- The Republican-controlled House Committee on Government Reform and Oversight conducted an investigation into President Clinton’s firing of personnel from the White House Travel Office. Representative William F. Clinger chaired the committee.
- The investigation gained momentum when First Lady Hilary Clinton became suspected of initiating the firings. President Clinton claimed he had already turned over thousands of pages of documents including memoranda. President Clinton invoked privilege over documents related to the First Lady. After threatening to hold a contempt vote, the White House agreed to provide 1,000 more documents.
- Documents included:
- Memoranda from top administrative aides;
- FBI personnel files;
- Personnel files;
- Travel files.
Whitewater (Clinton, 1992-1998)
- A Republican-controlled Senate Special Committee investigated the Clintons’ investment in the Whitewater Development Corporation. The committee was chaired by Senator Al D’Amato. The White House turned over Whitewater documents to the Justice Department. The White House claimed attorney-client privilege over some of the documents. The White House dropped the claim when threatened with being held in contempt.
- The documents included:
- Files from Foster’s office;
- Bills for legal work;
- Notes of interviews.
Reagan’s Diaries (Reagan, 1987)
- Both the Democratic-led House and the Senate Investigation Committees investigated Reagan’s actions in the Iran-Contra affair. The White House and the committees came to an agreement to obtain access to the diary: the White House Counsel reviewed the diary and typed relevant portions including all mentions of Iran and Nicaragua. Then only a limited number of committee members had access to the excerpts. The White House said that President Reagan would have been within his constitutional right to withhold the diary altogether.
Reagan EPA (Reagan, 1982-1983)
- The Democratic-led House Public Works Committee investigated the Environmental Protection Agency’s (EPA) mismanagement of superfund site cleanup. The committee requested documents from the EPA, which the Reagan administration refused to produce, citing executive privilege. The House voted to hold EPA Administrator Anne Gorsuch in contempt. Reagan then called for her resignation, and the White House acquiesced to releasing the records. The White House and Congress signed a memorandum of understanding to produce the subpoenaed
Billy Carter – Libya Investigation (Carter, 1980)
- A Democratic-led subcommittee of the Senate Judiciary Committee investigated President Carter’s brother’s business dealings in Libya. The committee was chaired by Senator Birch Bayh.
- The White House turned over documents including:
- Copies of memoranda written by the president, phone call records, and State Department cables;
- Private dictated notes.
- President Carter waived any claims of executive privilege
Watergate (Nixon, 1972-1974)
- The House Judiciary Committee and a Democratic-led Select Committee on Presidential Campaign Activities investigated the break-in at the Watergate Hotel and campaign activities in the 1972 election. The committee could subpoena witnesses and used the power to subpoena tapes and documents of the executive branch after Alexander Butterfield revealed the president maintained a voice-activated tape recorder system. The Supreme Court eventually ruled that Nixon had to surrender the tapes to a special prosecutor. In an address on April 29, 1974, President Nixon highlighted that he had already turned over some documents to the House Judiciary Committee and would comply with the subpoena.
Disclosure of Presidential Records in Senate Nomination Processes
Brett Kavanaugh (Trump, 2018)
- President Trump withheld over 100,000 documents related to Justice Kavanaugh’s White House service. The documents the White House provided consisted of talking points, press clippings, and announcements.
- The Trump White House invoked executive privilege, and President Bush’s lawyer said they were withholding the documents because they contained advice about the selection and nomination of judicial candidates.
- Notably, Kavanaugh did not follow the “Kagan Rule” and did not release emails that he received but did not write during his time in the Bush White House.
- The White House released 42,000 documents on the night before Kavanaugh’s hearing began.
Gina Haspel (Trump, 2018)
- The CIA “selectively” released documents related to the service of Trump’s nominee to direct the agency. Documents included a list of regions where she had been posted. Democrats asserted that more material should be declassified for the confirmation process. The agency agreed to provide senators on the Intelligence Committee with a classified briefing of Haspel’s CIA career.
- Committee Co-Chair Senator Warner insisted that the amount of material released to the public was unacceptable after the senators received their classified briefing. Documents related to CIA interrogation programs were at issue.
- Notably, as Acting Director of the CIA, Ms. Haspel herself had authority over the decision to release the documents in question. There was no assertion of executive privilege over the documents.
John Brennan (Obama, 2013)
- The Senate delayed the confirmation hearing of John Brennan to obtain more documents from the White House. The White House released two Office of Legal Counsel opinions on drone strikes to the committee, but only after portions of the document had leaked. The White House did not assert executive privilege over the documents.
Elena Kagan (Obama, 2010)
- President Obama did not assert executive privilege over any documents for Kagan’s nomination hearings. Consistent with the confirmation processes for Chief Justice Roberts and Justice Sotomayor, the committee did not receive documents containing national security information or personal privacy information.
- The National Archives released over 87,000 pages of documents from Kagan’s service in the Clinton administration. The White House produced email files from Kagan’s service. This had not been done for either Alito’s or Roberts’ confirmations.
Samuel Alito (Bush, 2005)
- The executive branch produced around 36,000 documents related to Justice Alito’s service in the Reagan White House.
Harriet Miers (Bush, 2005)
- Prior to Alito receiving the nomination, White House Counsel Hariet Miers withdrew from consideration by the Senate. The withdrawal followed requests for disclosure of communications between Miers and the President. President Bush had insisted these documents were protected by executive privilege.
John Roberts Jr. (Bush, 2005)
- The Senate Judiciary Committee sent multiple letters requesting documents from the Bush White House. A month before the hearings were set to begin, between 50,000 -75,000 pages of documents from the Reagan Library had not been turned over to the Judiciary Committee.
- The National Archives lost a file of Justice Roberts’ work for the Reagan White House related to affirmative action. Justice Roberts was confirmed without the Archives ever recovering the file. There was a formal investigation which failed to uncover a reason for the lost documents.
- President Bush never formally asserted executive privilege over any of the withheld documents. The White House agreed to release papers from Roberts’ service in the Reagan administration but withheld some papers from his time as deputy solicitor general in the George H.W. Bush administration.
- The Bush administration released 18,000 documents related to the confirmation of John Roberts two days before the hearings were set to begin.
- When the hearings began, Senate Democrats were still seeking documents from Roberts’ time as the principal deputy solicitor general.
- Documents produced included: memos, documents relating to his interpretation of civil rights laws, criticism of the Voting Rights Act, and defenses of congressional efforts to strip the Supreme Court of jurisdiction in certain matters.
Alexis Herman (Clinton, 1997)
- The White House released documents about Herman’s involvement in Clinton’s fundraising activities with the Democratic National Committee for her confirmation hearing to be Secretary of Labor. The White House did not assert executive privilege.
William Rehnquist (Reagan, 1986 – Chief Justice Nomination)
- The Reagan White House refused to release documents related to Rehnquist’s service in the Nixon administration. Rehnquist said he had no objection to the release of the memos, but the Reagan White house claimed executive privilege over the documents.
- The Senate Judiciary Committee threatened to infinitely delay the confirmations of both Rehnquist and Justice Scalia. The White House and the Senators reached a compromise where Senator Charles Mathias of Maryland and an attorney of the committee’s staff would get access to the documents from the Office of Legal Counsel.
- The documents included memoranda on civil rights, civil liberties, wiretapping, and surveillance of radical groups.