In United States v. Nixon, the Court held that executive privilege is:

• A. Absolute and never overridden
• B. Implicit but not absolute and cannot shield documents relevant to criminal prosecutions
• C. Applies to all documents including criminal prosecutions
• D. Not recognized by the Constitution

Answer: (B)

Executive privilege exists as a constitutional-tinged power to keep certain presidential communications confidential to protect the functioning of the executive branch. But it is not unlimited. United States v. Nixon established that the privilege is implicit yet qualified: it can be asserted, but it can be overcome when the documents or tapes are needed for a criminal investigation or prosecution. The Court emphasized a balancing test between the need for confidentiality and the demands of the judicial process, holding that when the evidence is indispensable to the pursuit of justice, the privilege does not prevent disclosure. This means the privilege is not absolute, and it cannot shield materials relevant to criminal prosecutions. In other words, the privilege is implicit and not unlimited, and it does not bar production of documents in criminal cases.