Constitution Daily

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When Presidents use executive privilege

March 24, 2017 by Chris Calabrese

 

One of the great constitutional myths is the principle of executive privilege. Though the term is not explicitly mentioned in the Constitution, every President has called upon it when necessary.

As George Mason University professor Mark Rozell explained in a 1999 article for the Minnesota Law Review, executive privilege is “the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.” This power can be used in two circumstances: “(1) certain national security needs and (2) protecting the privacy of White House deliberations when it is in the public interest to do so.” The second part is especially valuable, as it allows presidential advisors to freely speak their minds without the threat of a subpoena.

Every President to date has used this power in one way or another, although some have used it more famously than others. Here are some of the biggest examples.

George Washington

As with so much of the presidency, George Washington set the precedent for executive privilege. After a failed military operation against Native Americans, Congress wanted to know what happened. They sought records and testimony from White House officials. Washington and his cabinet agreed that a President had the right to refuse to these requests in the name of national security. Washington also later argued that the House of Representatives had no right to see the Jay Treaty signed between the U.S. and Great Britain. Eventually, he relented in both of these cases, but the precedent of asserting such authority was set.

Dwight D. Eisenhower

Eisenhower was the first President to coin the term “executive privilege”. During Senator Joseph McCarthy’s crusade against communism, the President prevented Cabinet members and other advisors from being questioned in the famous McCarthy-Army hearings. He said, “Any man who testifies as to the advice he gave me won’t be working for me that night.” This was designed to protect sensitive documents from coming into public view, especially the view of Senator Joseph McCarthy, and to continue the tradition of allowing advisors to speak freely without the threat of a subpoena.

Some, including President Lyndon B. Johnson, believe that Eisenhower went too far with executive privilege. It was recorded that the privilege was used 44 times, sometimes by other members of the executive branch to not even talk about daily routines without Eisenhower’s approval. Johnson made a point to say that if his administration were to use executive privilege, he would be the sole one to invoke it, much like his predecessor John F. Kennedy. Both Presidents used it sparingly.

Richard Nixon

While the previous two presidents helped to define executive privilege, President Nixon was the one who really brought it to the forefront of American politics.

Executive privilege had always been nominally used in defense of the public interest, but Nixon attempted to use it to protect himself and other advisors during the Watergate investigation. In the landmark Supreme Court case U.S. v. Nixon, the Supreme Court unanimously declared that executive privilege is constitutional and sometimes necessary for national security. But the Court also held that it is not all-encompassing. If requested documents and testimonies are a key part of an investigation, then they must be brought forward. Therefore, the Watergate tapes were turned over to the special prosecutor. Shortly after this decision, Nixon resigned.

Nixon forever changed how Americans view executive privilege. His questionable use of the power led many Americans to believe that all uses are for the same undisclosed reasons. This may have led Presidents Gerald Ford, Jimmy Carter, Ronald Reagan and George H.W. Bush to use the privilege sparingly—especially Ford, who had to deal with many congressmen using the Nixon saga as leverage to make the White House as transparent as possible. Reagan was so cautious that he did not use the privilege during the investigation of the Iran-Contra affair. There would not be another controversy regarding executive privilege until 1998.

Bill Clinton

The Clinton White House was mired in two major scandals, Whitewater and Monica Lewinsky. During these investigations, President Clinton used executive privilege 14 times, which included protecting First Lady Hillary Clinton from testifying during the Whitewater hearings and protecting himself from testifying in both cases.

His executive privilege claims, as well as his attorney-client claims in the Lewinsky investigation, were challenged in federal court. Citing U.S. v. Nixon, the courts determined that the prosecutor’s needs outweighed the confidentiality of executive documents and discussions. This ruling was not appealed to the Supreme Court, as the White House sought to avoid a headline-grabbing legal loss.

Clinton was eventually impeached by the House but not convicted the Senate, allowing him to finish his second term.

Barack Obama

President Obama’s most famous use of executive privilege came during the “Fast and Furious” scandal. The Bureau of Alcohol, Tobacco, and Firearms had run an operation to sell guns to Mexico, in the hope that they could track those weapons to major drug cartels and apprehend some of their members. The guns were not able to be tracked and one was eventually used in the killing of a border patrol agent.

Representative Darrell Issa and Senator Chuck Grassley held hearings to determine what went wrong during the mission. Obama and Attorney General Eric Holder both said they did not know about it until a few weeks prior to the killing and did not authorize it. Congress and the Department of Justice ended up in a standoff over the sharing of 1,300 documents, leading Obama to assert executive privilege in order to keep them private. In retaliation, Congress voted to make Holder the first Cabinet member held in contempt of Congress.

Much like Nixon and Clinton, Obama’s claim of executive privilege was rejected by a federal court, and the documents were turned over.

Clearly, in the last half-century, executive privilege has lost some of its luster. With popular distrust of Washington at record highs, using this power appears less like protecting the public interest and more like hiding from the public for your own interest. But while executive privilege may be on the ropes after several defeats in court over the years, history indicates that President Donald J. Trump and future Presidents will continue to call upon this power—and the courts will continue to judge its necessity.

Chris Calabrese is an intern at the National Constitution Center. He is also a recent graduate of St. Joseph’s University.

 

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