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Presidency: What Is Executive Privilege and Why Do Presidents Like to Invoke It?

Editor's Note: This article first appeared on HNN in December 2001. Given the events of the last few days, it seemed like a good idea to rerun it.

During Bill Clinton's presidency, Republicans bayed about the administration's stealthy policy formulation on health care and other issues. Democrats, meanwhile, upheld the need for executive officials to deliberate in private. Now-fancy that-Democrats are championing the public's right to know, demanding that the Bush administration reveal which corporate lobbyists drafted its policies on energy, environmental clean-up, allowable levels of arsenic in drinking water, and so on. Dick Cheney, on the other hand, sputters on Nightline about why he's entitled to keep his meetings with outsiders secret but Hillary Clinton wasn't.

Although liberals tend to champion sunlight and conservatives to defend authority, the battles over White House"secrets" are traditionally less a display of political principles than a symptom of the 200-year-old war between Congress and the White House. Indeed, the Constitution practically hardwires the conflict. Although the Constitution speaks repeatedly about which branch possesses which specific powers, it's virtually silent on the question of what information the executive branch must disclose to Congress (apart from requiring the president to report annually on the state of the union). The vagueness became a recipe for conflict.

Early Americans, as Arthur Schlesinger Jr. wrote in The Imperial Presidency , assumed that Congress would have access to information from the chief executive. From George Washington through John Quincy Adams, presidents seldom refused to turn over papers to Congress and did so only with hesitation. Washington believed that documents relating to ongoing treaty negotiations might warrant withholding, and Jefferson kept some letters from Congress relating to the Burr conspiracy because he believed it wrong to disclose material that was"a mixture of rumors, conjecture, and suspicions." Congress did not much complain.

The first secrecy clash between president and Congress came in 1832 when Andrew Jackson set out to destroy the Second Bank of the United States. Where others had construed the Constitution's silence on the question of presidential disclosure to Congress to mean that compliance was expected, Jackson inverted the equation. When the Senate sought to see the arguments Jackson made to his Cabinet for withdrawing government assets from the national bank, the president replied that the Senate had no constitutional authority to make such a request."As well might I be required to detail to the Senate the free and private conversations I have held with those officers on any subject relating to their duties and my own," he wrote. Not without foundation, the president believed that his congressional opponents' demands amounted to petty partisan harassment, and he cited this putative motive as another reason for resisting their entreaties.

Successive presidents did likewise. John Tyler, James Polk, Ulysses Grant, Grover Cleveland, and others chose to withhold information from Congress, inventing novel reasons for doing so. Mostly, though, the years after the impeachment of Andrew Johnson in 1868 saw a return to congressional dominance, as most presidents deferred to congressional requests and the power of the presidency remained unthreatening to most people.

With William McKinley and Theodore Roosevelt, power shifted back toward the executive branch, in foreign and domestic affairs. The Spanish-American War of 1898 made the United States a colonial power in the remote Philippines, and TR ushered in the federal regulatory state. He also asserted presidential privilege more vigorously-and outrageously-than his predecessors. When his administration declined to give the Senate papers relating to the prosecution of U.S. Steel, the Senate vowed to jail a leading official. Undeterred, Roosevelt transferred the disputed papers to the White House where he would be responsible."The only way the Senate or the committee can get those papers now is through my impeachment," he taunted.

After World War II, Democrats, Republicans, and much of the public came to believe that the Soviet threat justified in peacetime the sort of secrecy and clandestine behavior normally tolerated only during war. Dwight Eisenhower, despite his famous valedictory warnings against the military-industrial complex, did as much as any president to nourish this national security state. Before Ike, presidents had compiled a long list of reasons for refusing congressional requests: the safeguarding of secret foreign policy deliberations; the protection of confidences; the fear that innocents would be unfairly impugned; the need to resist partisan harassment. But they had always conceded, at least tacitly, that sometimes such requests were justified. Ike, on the other hand, sought to radically expand the purview of what his attorney general William Rogers labeled, for the first time,"executive privilege."

In 1954, fending off one of Joe McCarthy's fishing expeditions, Eisenhower insisted that"it is not in the public interest that any... conversations or communications, or any documents or reproductions" concerning advice from any executive branch official whatsoever be disclosed. Because he was stiffing McCarthy, most liberal opinion-makers cheered his resolve. Emboldened, the administration continued to deny congressional requests, at least 44 times from June 1955 to June 1960-more often than all other presidents combined. It was a dangerous precedent, but because of the political atmosphere, there was little outcry.

As the imperial presidency grew under John Kennedy, Lyndon Johnson, and Richard Nixon, however, outcry arose. Nixon, the first president in 120 years to face a Congress controlled wholly by the opposition, fought continually with Congress over matters of constitutional power, from his impoundment of congressionally allocated funds to his invasion of Cambodia. After the Senate began investigating Watergate, Nixon's promiscuous use of executive privilege as a stonewalling technique became a chief point of contention. Nixon-who had earlier in his career attacked Harry Truman and Kennedy for invoking presidential prerogatives-himself used the claim to prevent his aides from testifying before Congress and then to withhold the tapes he made of his White House conversations. In an argument not heard since Jackson's day, Nixon's lawyers suggested that the courts had no power to compel the president to do anything at all. The president alone, they wrote,"must weigh the interest in prosecuting a wrongdoer against the interest in keeping all presidential conversations confidential."

In a historic ruling that must make some of this year's Supreme Court tremble with shame, the court in 1974, in United States v. Nixon, rejected the president's claims 8-0 (with William Rehnquist abstaining). Nixon was forced to turn over the subpoenaed tapes, including one on which he could be heard plotting to obstruct the FBI's Watergate investigation just days after it began. Resignation followed swiftly.

Nixon often used to couch his defiance of Congress as a defense of"the presidency," so as to suggest he was not just protecting his own hide. Ironically, United States v. Nixon, though it sealed Nixon's fate, did shore up the presidency's power in a significant way, because the court held-erroneously, it seems in retrospect-that the notion of executive privilege was"Constitutionally based." As a result, the squabbles over executive privilege have continued, with Bill Clinton, during the Starr prosecution, invoking it with all of his delightful creativity.

At the end of last week, the Bush administration relented and gave Sen. Joe Lieberman's Government Affairs Committee access to material about its environmental policymaking. Lieberman, in return, promised to consult with the administration before publicizing any of the information. Both sides claimed victory, with Lieberman saying that the deal averted"a constitutional and legal confrontation-at least for the time being." If history is any guide, the time won't last very long.

Related Links

  • Congressional Research Service: Presidential Claims of Executive Privilege ... History, Law, Practice and Recent Developments

  • This article was first published by Slate.com and is reprinted with permission.