Executive Privilege: Its Use and History Down through the Republic by Eric Shapiro
“How much does a congressional committee need to know to be sure nothing illegal or immoral is being done? Can it know that much without exposing sensitive and necessary operations?”[1] These questions, articulated so well by former CIA director Stansfield Turner, lie at the heart of the debate over executive privilege, or the prerogative of the President and his administration to withhold information from Congress and the public. At its heart is the implicit idea, not explicit in the Constitution, that a President must have the right to keep certain key information and advice from those he confers with in advising and helping him execute his duties as President and private from the public and other Branches of Government under the separation of powers. The use of such a controversial tool has been a subject of heated debate since the early days of the Republic.
Some have claimed that it is never a legitimate tool given the President’s perceived Constitutional obligation “to Faithfully Uphold the Laws” and to be forthcoming with the public and constitutional obligations of the other Branches to collect information for law making, particularly Congress, [Dad’s addition here doesn’t make sense in the context of what you’re saying. It needs to be fixed – maybe you know what he’s trying to say] while others have argued that it is acceptable under certain conditions, typically to safeguard the integrity of White House affairs and/or keep sensitive national security out of the hands of the U.S.’s enemies.[2] Historically, its strongest justification has been in areas of National Security where the President’s explicit and implied Constitutional authority is greatest, but it has also been justified in the realm of domestic affairs. From George Washington to George W. Bush, all Presidents have been forced to deal with this difficult issue to a certain degree. However, on several notable occasions, executive privilege and, more broadly, government secrecy, have moved to the forefront of U.S. politics (whether or not most Americans recognize the term). George Washington, Richard Nixon, Ronald Reagan and George W. Bush faced varying degrees of criticism for attempting to withhold information that Congress and/or the public requested, albeit for different reasons.
Executive privilege is not mentioned a single time in the U.S. Constitution. Therefore, it has been subject to many different interpretations by scholars and, most importantly, Presidents themselves. George Washington, considered by many to be the greatest President, and precedent setter, in U.S. history, set an early tradition regarding executive privilege. Following the ratification of the Jay Treaty in 1796, which laid out conditions intended to maintain peace with Great Britain, House members opposed to an appropriations bill under consideration in Congress passed a motion calling for the President to release all documents pertaining to the treaty in an attempt to discredit its negotiation. Washington refused to comply on the grounds that Congress did not have the Constitutional authority to interfere in the negotiation of treaties. Thus, Washington implicitly supported the notion that,by extension, it was the President’s prerogative to withhold information from Congress and the public in order to safeguard vital national security interests.[3]
The real potential for controversy and debate in the use of Exective Privilege lies when it is invoked for reasons of short-term political advantage that cannot be easily justified by reference to issues of grand international or domestic policy, or where the appearance or reality suggests that the President is using it for questionable or possibly unsavory motives – that has unfortunately been the case in the modern era. The use of and consequent debate over executive privilege has continued for that reason in recent contemporary history. Far from being a partisan issue, Democratic and Republican Presidents alike have made use of this controversial power. Executive privilege would rise to the forefront of American politics during the administration of President Richard M. Nixon and his Watergate era tribulations, but also in connection with his domestic and foreign policy concerns. George Washington’s decision to withhold documents from Congress to maintain peace with Britain, then a vastly more powerful state than the U.S., is not widely challenged today. Richard M. Nixon’s use of executive privilege, on the other hand, damaged his reputation to the extent that he chose, under threat of impeachment, to step down. Rather than exercising executive privilege for the sake of national security or a similarly compelling (which is not to say uncontroversial) reason, Nixon arguably invoked, by appearances, and sought to protect himself from criminal prosecution after the infamous Watergate “plumbers” of Woodward and Bernstein fame on his administration’s payroll were caught attempting break into the Democratic National Committee headquarters at the Watergate Hotel on June 17, 1972. Upon discovering that Nixon had installed a system that recorded every conversation held in the White House, Congress insisted that he hand over the tapes. Initially he refused, citing executive privilege. However, when circumstances led to the relinquishing of the tapes, Nixon discredited not only the White House, but also the very notion that executive privilege could be employed for legitimate purposes. By conflating the issue of excecutive privelege with his own justification for what turned out to be illegal short-term personal expediency, Nixon discredited reasonable justifications for executive privilege, like Washington’s, for a generation down to this day.
The election of Ronald Reagan may have heralded a new age of conservatism in America, but in his use of executive privilege, he was remarkably consistent with liberal Democratic presidents like John F. Kennedy and Lyndon Johnson. Reagan insisted that executive privilege was a “legitimate and appropriate”[4] tool of the president and his advisors and the Los Angeles Times declared that Reagan “set a policy and tone for secrecy in government that exceeds anything since Watergate.”[5]
Reagan rarely invoked executive privilege, usually capitulating to Congress when they demanded that he reveal sensitive information (during the Iran Contra Affair, for instance). However, he also laid the foundation for a new era of executive privilege by promoting a policy of strict secrecy and was effective in doing so by associating its justification with national security and foreign policy concerns, in the tradition of Washington. On this, he was on much firmer ground. . For example, he imposed severe limitations on the Freedom of Information Act, dealt out harsh punishment to government officials who leaked information to the press and restricted public access to federal documents. In his covert deployment of troops to Grenada and the Iran-Contra Affair, Reagan demonstrated that a reluctance to invoke executive privilege did not guarantee that an administration would be forthcoming with Congress and the public. In fact, Reagan’s policies fostered an atmosphere of secrecy that made it easier for his successors to do so.[6]
One such future president, Bill Clinton, invoked executive privilege in order to withhold information regarding a sex scandal, which marked a departure from its traditional use for national security purposes. In this case, he unfortunately harked back to Nixon’s day, and was called to account by many Republicans and even Democrats. When in 1997 Clinton faced allegations of conducting an affair with White House intern Monica Lewinsky in the Oval Office, he turned to executive privilege in an attempt to block investigators. Clinton also made use of executive powers on many other occasions (a total of 13 times according to Morton Rosenberg of the Congressional Research Service), more so than any President since Richard Nixon. Lloyd Cutler, one of the President’s close advisors, issued a memorandum that delineated a broad set of circumstances in which the Administration considered it appropriate to invoke executive privilege. Over the course of his Presidency, Bill Clinton repeatedly made use of a power intended to protect the public from harm in order to safeguard his own and his Administration’s political interests. In this way, Bill Clinton echoed Richard Nixon.
The next President, George W. Bush, approached executive privilege from a totally different perspective. Rather than using executive privilege primarily as a means to shield his Administration from criticism (although he indulged in his fair share of this as well), Bush saw it as one of many tools at his disposal to create a more powerful Executive. It was often aligned with an overarching theory of aggrandized Executive Power that Bush felt compelled to assert to prosecute wars in Irag and Afghanistan and the “War on Terror.” In this he was in line with the traditional assertion of the privilege by Washington.
Much of the controversy that the Bush Administration faced arose when the public began to lose faith in its ability to prosecute the war on terror. Initially, caught up in the wave of national anxiety and convinced of the need for heightened security following 9/11, Congress passed legislation that ceded much of its discretionary authority to the Executive Branch. Bush continued to request power on the grounds that quick decisive action was necessary to prevent future terrorist attack on American soil. Where Congress refused to grant the Bush Administration the power it demanded, it acted unilaterally.
However, as the heady days of political unity and jingoism brought on by a wave of patriotism in the wake of a terrible tragedy wore off, the nation woke up to a massive hangover. Its collective wallet was trillions of dollars lighter and al Qaeda’s senior officers (particularly arch-boogeyman Osama Bin Laden) were still at large and terrorist organizations flourished in the supposedly “liberated” nations of Iraq and Afghanistan, Americans and Congress began to question the administration they had placed so much faith in and sacrificed so much for since 2001. Slowly but surely, the public and hence, Congress, began to demand access to information from a tightlipped Bush Administration.
In 2004, the 9/11 Commission, tasked with investigating the circumstances surrounding the terrorist attack of that day, asked Secretary of State Condoleeza Rice to testify on the intelligence available to the President prior to the attacks. Bush argued that the commission’s request undermined Presidents’ need to receive candid advice about important matters.[7] Despite eventually allowing Rice to appear before the 9/11 Commission in response to public and media pressure, President Bush demanded assurances from Republican Congressional leaders that her testimony not be construed as a “precedent for future requests for any White House official to testify before a legislative body.”[8] The fact that Bush went out of his way to pre-empt future Congressional investigations into his Administration’s conduct during and before the war on terror is evidence of his staunch belief in executive privilege. Shortly thereafter, he engaged in a de facto use of executive privilege by charging a public interest group a sum of money it could not afford to procure files relating to the detention of immigrants after 9/11.
Bush and his administration are responsible for arguably the grossest misuse of executive privilege in U.S. history. However, Congress deserves equal if not greater blame for enabling the President at almost every turn following 9/11. Washington, Nixon and Clinton were limited, or at the very least, challenged, in their attempts to withhold information from Congress. Washington’s Anti-Federalist opponents fought tooth and nail to compel him to divulge documents relating to his negotiation of the John Jay Treaty. Nixon likely would have been thrown out of office if he had not chosen to step down. Reagan, despite supporting many clandestine activities, was forthcoming with a Democrat-controlled Congress because he knew his reputation would suffer irreparable damage if he appeared to act unilaterally. Clinton faced impeachment thanks to the efforts of a nakedly partisan and self-righteous Republican Party. After lying under oath, he was forced to admit to his affair. Bush, on the other hand, was given a blank check to do virtually anything he wanted in the wake of 9/11. It was not until later, when public opinion turned against the war, that Congress put pressure on the Bush Administration to turn over documents.
In summary, American history shows the the doctrine of executive privilege exists by precedent and tradition, if not by explicit Constitutional authorization. Any President’s successful use of it appears qualified, and in the final result, the President’s ability to uphold it depends on his good political and personal judgment in choosing his battles, as well as the overall political and historical context in which it is used --strongest in the areas of national security and foreign affairs, and less so in issues of naked political or personal advantage.
[1] Mark J. Rozell, Executive Privilege, First ed., 4
[2] Ibid., 1-20
[3] Phillip C. Dolce & George H. Skau, Power and the Presidency, First ed., 19
[4] Andrew Rudalevige, The New Imperial Presidency, First ed., 182
[5] Ibid., 187
[6] Mark J. Rozell, Executive Privilege in the Reagan Administration: Diluting a Constitutional Doctrine, 760-763
[7] Andrew Rudalevige, The New Imperial Presidency, First ed., 239
[8] Ibid., 239
Some have claimed that it is never a legitimate tool given the President’s perceived Constitutional obligation “to Faithfully Uphold the Laws” and to be forthcoming with the public and constitutional obligations of the other Branches to collect information for law making, particularly Congress, [Dad’s addition here doesn’t make sense in the context of what you’re saying. It needs to be fixed – maybe you know what he’s trying to say] while others have argued that it is acceptable under certain conditions, typically to safeguard the integrity of White House affairs and/or keep sensitive national security out of the hands of the U.S.’s enemies.[2] Historically, its strongest justification has been in areas of National Security where the President’s explicit and implied Constitutional authority is greatest, but it has also been justified in the realm of domestic affairs. From George Washington to George W. Bush, all Presidents have been forced to deal with this difficult issue to a certain degree. However, on several notable occasions, executive privilege and, more broadly, government secrecy, have moved to the forefront of U.S. politics (whether or not most Americans recognize the term). George Washington, Richard Nixon, Ronald Reagan and George W. Bush faced varying degrees of criticism for attempting to withhold information that Congress and/or the public requested, albeit for different reasons.
Executive privilege is not mentioned a single time in the U.S. Constitution. Therefore, it has been subject to many different interpretations by scholars and, most importantly, Presidents themselves. George Washington, considered by many to be the greatest President, and precedent setter, in U.S. history, set an early tradition regarding executive privilege. Following the ratification of the Jay Treaty in 1796, which laid out conditions intended to maintain peace with Great Britain, House members opposed to an appropriations bill under consideration in Congress passed a motion calling for the President to release all documents pertaining to the treaty in an attempt to discredit its negotiation. Washington refused to comply on the grounds that Congress did not have the Constitutional authority to interfere in the negotiation of treaties. Thus, Washington implicitly supported the notion that,by extension, it was the President’s prerogative to withhold information from Congress and the public in order to safeguard vital national security interests.[3]
The real potential for controversy and debate in the use of Exective Privilege lies when it is invoked for reasons of short-term political advantage that cannot be easily justified by reference to issues of grand international or domestic policy, or where the appearance or reality suggests that the President is using it for questionable or possibly unsavory motives – that has unfortunately been the case in the modern era. The use of and consequent debate over executive privilege has continued for that reason in recent contemporary history. Far from being a partisan issue, Democratic and Republican Presidents alike have made use of this controversial power. Executive privilege would rise to the forefront of American politics during the administration of President Richard M. Nixon and his Watergate era tribulations, but also in connection with his domestic and foreign policy concerns. George Washington’s decision to withhold documents from Congress to maintain peace with Britain, then a vastly more powerful state than the U.S., is not widely challenged today. Richard M. Nixon’s use of executive privilege, on the other hand, damaged his reputation to the extent that he chose, under threat of impeachment, to step down. Rather than exercising executive privilege for the sake of national security or a similarly compelling (which is not to say uncontroversial) reason, Nixon arguably invoked, by appearances, and sought to protect himself from criminal prosecution after the infamous Watergate “plumbers” of Woodward and Bernstein fame on his administration’s payroll were caught attempting break into the Democratic National Committee headquarters at the Watergate Hotel on June 17, 1972. Upon discovering that Nixon had installed a system that recorded every conversation held in the White House, Congress insisted that he hand over the tapes. Initially he refused, citing executive privilege. However, when circumstances led to the relinquishing of the tapes, Nixon discredited not only the White House, but also the very notion that executive privilege could be employed for legitimate purposes. By conflating the issue of excecutive privelege with his own justification for what turned out to be illegal short-term personal expediency, Nixon discredited reasonable justifications for executive privilege, like Washington’s, for a generation down to this day.
The election of Ronald Reagan may have heralded a new age of conservatism in America, but in his use of executive privilege, he was remarkably consistent with liberal Democratic presidents like John F. Kennedy and Lyndon Johnson. Reagan insisted that executive privilege was a “legitimate and appropriate”[4] tool of the president and his advisors and the Los Angeles Times declared that Reagan “set a policy and tone for secrecy in government that exceeds anything since Watergate.”[5]
Reagan rarely invoked executive privilege, usually capitulating to Congress when they demanded that he reveal sensitive information (during the Iran Contra Affair, for instance). However, he also laid the foundation for a new era of executive privilege by promoting a policy of strict secrecy and was effective in doing so by associating its justification with national security and foreign policy concerns, in the tradition of Washington. On this, he was on much firmer ground. . For example, he imposed severe limitations on the Freedom of Information Act, dealt out harsh punishment to government officials who leaked information to the press and restricted public access to federal documents. In his covert deployment of troops to Grenada and the Iran-Contra Affair, Reagan demonstrated that a reluctance to invoke executive privilege did not guarantee that an administration would be forthcoming with Congress and the public. In fact, Reagan’s policies fostered an atmosphere of secrecy that made it easier for his successors to do so.[6]
One such future president, Bill Clinton, invoked executive privilege in order to withhold information regarding a sex scandal, which marked a departure from its traditional use for national security purposes. In this case, he unfortunately harked back to Nixon’s day, and was called to account by many Republicans and even Democrats. When in 1997 Clinton faced allegations of conducting an affair with White House intern Monica Lewinsky in the Oval Office, he turned to executive privilege in an attempt to block investigators. Clinton also made use of executive powers on many other occasions (a total of 13 times according to Morton Rosenberg of the Congressional Research Service), more so than any President since Richard Nixon. Lloyd Cutler, one of the President’s close advisors, issued a memorandum that delineated a broad set of circumstances in which the Administration considered it appropriate to invoke executive privilege. Over the course of his Presidency, Bill Clinton repeatedly made use of a power intended to protect the public from harm in order to safeguard his own and his Administration’s political interests. In this way, Bill Clinton echoed Richard Nixon.
The next President, George W. Bush, approached executive privilege from a totally different perspective. Rather than using executive privilege primarily as a means to shield his Administration from criticism (although he indulged in his fair share of this as well), Bush saw it as one of many tools at his disposal to create a more powerful Executive. It was often aligned with an overarching theory of aggrandized Executive Power that Bush felt compelled to assert to prosecute wars in Irag and Afghanistan and the “War on Terror.” In this he was in line with the traditional assertion of the privilege by Washington.
Much of the controversy that the Bush Administration faced arose when the public began to lose faith in its ability to prosecute the war on terror. Initially, caught up in the wave of national anxiety and convinced of the need for heightened security following 9/11, Congress passed legislation that ceded much of its discretionary authority to the Executive Branch. Bush continued to request power on the grounds that quick decisive action was necessary to prevent future terrorist attack on American soil. Where Congress refused to grant the Bush Administration the power it demanded, it acted unilaterally.
However, as the heady days of political unity and jingoism brought on by a wave of patriotism in the wake of a terrible tragedy wore off, the nation woke up to a massive hangover. Its collective wallet was trillions of dollars lighter and al Qaeda’s senior officers (particularly arch-boogeyman Osama Bin Laden) were still at large and terrorist organizations flourished in the supposedly “liberated” nations of Iraq and Afghanistan, Americans and Congress began to question the administration they had placed so much faith in and sacrificed so much for since 2001. Slowly but surely, the public and hence, Congress, began to demand access to information from a tightlipped Bush Administration.
In 2004, the 9/11 Commission, tasked with investigating the circumstances surrounding the terrorist attack of that day, asked Secretary of State Condoleeza Rice to testify on the intelligence available to the President prior to the attacks. Bush argued that the commission’s request undermined Presidents’ need to receive candid advice about important matters.[7] Despite eventually allowing Rice to appear before the 9/11 Commission in response to public and media pressure, President Bush demanded assurances from Republican Congressional leaders that her testimony not be construed as a “precedent for future requests for any White House official to testify before a legislative body.”[8] The fact that Bush went out of his way to pre-empt future Congressional investigations into his Administration’s conduct during and before the war on terror is evidence of his staunch belief in executive privilege. Shortly thereafter, he engaged in a de facto use of executive privilege by charging a public interest group a sum of money it could not afford to procure files relating to the detention of immigrants after 9/11.
Bush and his administration are responsible for arguably the grossest misuse of executive privilege in U.S. history. However, Congress deserves equal if not greater blame for enabling the President at almost every turn following 9/11. Washington, Nixon and Clinton were limited, or at the very least, challenged, in their attempts to withhold information from Congress. Washington’s Anti-Federalist opponents fought tooth and nail to compel him to divulge documents relating to his negotiation of the John Jay Treaty. Nixon likely would have been thrown out of office if he had not chosen to step down. Reagan, despite supporting many clandestine activities, was forthcoming with a Democrat-controlled Congress because he knew his reputation would suffer irreparable damage if he appeared to act unilaterally. Clinton faced impeachment thanks to the efforts of a nakedly partisan and self-righteous Republican Party. After lying under oath, he was forced to admit to his affair. Bush, on the other hand, was given a blank check to do virtually anything he wanted in the wake of 9/11. It was not until later, when public opinion turned against the war, that Congress put pressure on the Bush Administration to turn over documents.
In summary, American history shows the the doctrine of executive privilege exists by precedent and tradition, if not by explicit Constitutional authorization. Any President’s successful use of it appears qualified, and in the final result, the President’s ability to uphold it depends on his good political and personal judgment in choosing his battles, as well as the overall political and historical context in which it is used --strongest in the areas of national security and foreign affairs, and less so in issues of naked political or personal advantage.
[1] Mark J. Rozell, Executive Privilege, First ed., 4
[2] Ibid., 1-20
[3] Phillip C. Dolce & George H. Skau, Power and the Presidency, First ed., 19
[4] Andrew Rudalevige, The New Imperial Presidency, First ed., 182
[5] Ibid., 187
[6] Mark J. Rozell, Executive Privilege in the Reagan Administration: Diluting a Constitutional Doctrine, 760-763
[7] Andrew Rudalevige, The New Imperial Presidency, First ed., 239
[8] Ibid., 239