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Which other presidents or former presidents invoked executive privilege or the Fifth, and what were the outcomes?
Executive summary
Multiple presidents have invoked executive privilege; landmark outcomes include the Supreme Court limiting the doctrine in United States v. Nixon [1], and courts and Congress treating the privilege as qualified rather than absolute [2]. Courts and scholars also say former presidents may assert a presidential communications privilege but its strength often depends on the sitting president’s position and can be overcome when the need for evidence is shown [3] [4].
1. The Nixon turning point: privilege is real but qualified
The Supreme Court’s decision in United States v. Nixon established the central rule still cited today: presidential communications enjoy a qualified privilege but it cannot be used to withhold evidence relevant to a criminal trial, meaning executive privilege yields when “the fair administration of justice” requires disclosure [2]. That ruling is the authoritative touchstone for later disputes — it recognizes a confidentiality interest in presidential communications while explicitly limiting absolute secrecy [2].
2. Eisenhower and the coinage of the term — wide use, political pushback
Dwight D. Eisenhower popularized the term “executive privilege” during the Army–McCarthy era and invoked it repeatedly — reported figures put his usage in the dozens — reflecting a mid-20th-century expansion of the practice to shield internal deliberations from congressional questioning [5] [6]. That broad use prompted later presidents and critics to debate scope and propriety; Lyndon Johnson and others warned against excessive secrecy even as administrations continued to assert the doctrine [6].
3. Clinton, Bush, Obama and the pattern of assertions and judicial pushback
Modern presidents have repeatedly invoked executive privilege in congressional and investigatory settings. Bill Clinton asserted the privilege multiple times—reporting indicates fourteen instances—and in some high-profile matters courts or political processes did not accept it as a blanket shield [7] [8]. George W. Bush and Barack Obama also asserted privilege in various probes, producing a pattern where administrations seek to protect internal deliberations but courts apply a balancing test consistent with Nixon [9] [8].
4. Former presidents: authority to assert, but effectiveness is conditional
Legal and Congressional Research Service analysis indicates a former president can assert the presidential communications component of executive privilege, but the claim’s strength is “heavily influenced” by the current president’s stance and by competing needs for the records [3]. Nixon-era follow‑on cases (sometimes called “Nixon II” and Dellums in CRS summaries) shaped a framework where former-presidential assertions are recognized legally yet are not dispositive if a sufficient need for disclosure is shown [4] [3].
5. Scholarly debate and policy consequences: risks of allowing ex‑presidents unchecked secrecy
Scholars and commentators disagree about whether allowing former presidents broad privilege is wise: some argue only the sitting president should have meaningful control because the current executive can be held accountable politically and institutionally, while former presidents lack those institutional pressures and might invoke the privilege to protect reputation rather than governance needs [10]. Legal commentators at places like Just Security have argued former presidents cannot meaningfully assert executive privilege in a way that blocks serious probes, reflecting a skeptical view of expansive ex‑presidential claims [11].
6. Practical outcomes: balancing tests, institutional bargaining, and transparency tools
In practice, courts use a balancing test rooted in Nixon: they weigh confidentiality interests against the need for evidence; privileged assertions can be sustained for purely deliberative presidential communications but typically fail when subpoenaed materials are essential to criminal prosecutions or critical congressional functions [2] [4]. Congress and the archives law (PRA) also create procedures and institutional levers — for example, the National Archives’ role and statutory mechanisms — that affect whether records are disclosed even when privilege is asserted [4].
7. What reporting leaves open or unsettled
Available sources do not provide a single exhaustive list in this packet of every president who invoked privilege or each concrete outcome of those invocations; the literature documents many notable instances (Eisenhower, Nixon, Clinton, Bush, Obama, Trump) and legal principles but does not enumerate every dispute or the detailed judicial disposition for each case in these excerpts [5] [9] [8] [7]. For specific case-by-case outcomes — e.g., which subpoenas were upheld or rejected and the full reasoning in each court opinion — readers should consult the cited primary decisions and CRS reports summarized above [2] [4] [3].
If you want, I can compile a timeline of named invocations and the judicial or congressional outcomes for each (e.g., Nixon tapes, Clinton Watergate-era followups, Obama Fast and Furious, Trump’s Mueller and census disputes) using the sources above and pointing to the underlying court opinions and committee actions.