Executive Privilege and the Presidency
Executive privilege is the constitutional principle that permits the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public. Executive privilege is controversial because it is nowhere mentioned in the U.S. Constitution and some presidents have misused this authority to conceal evidence of wrongdoing or politically embarrassing information. Conflicts over executive privilege escalated in recent years, particularly during the Donald Trump Administration in which the president and some of his staff and former staff asserted various legal rationales to challenge investigations.
There is no doubt that presidents and their staffs have secrecy needs and that these decision-makers must be able to deliberate in private without fear that their every utterance may be made public. But many observers question whether presidents even have the right to withhold documents and testimony in the face of congressional investigations or judicial proceedings.
Executive privilege is an implied presidential power that is recognized by the courts, most famously in the U.S. v. Nixon (1974) Supreme Court case. Presidents generally use executive privilege in order to promote certain national security needs, to protect the confidentiality of White House communications, or to protect the secrecy of ongoing criminal investigations in the executive branch. There is no absolute right of presidential secrecy and the presumption in our democratic-Republic is in favor of openness of information. Thus, presidents have a burden to demonstrate the necessity of maintaining secrecy whereas there is little such burden on Congress or special counsels to demonstrate a right to conduct investigations.
The history of this presidential power is somewhat murky given the fact that the phrase executive privilege was not a part of our common political discourse for many years. No president ever actually used the phrase “executive privilege” until the Dwight D. Eisenhower administration. Nonetheless, all presidents going back to George Washington have exercised some form of what we today call executive privilege. The first use of this authority dates back to 1792, when Congress demanded from the Washington administration information regarding the failure of a U.S. military expedition. Congress specifically requested White House records and testimony from presidential staff familiar with the event. Washington convened his Cabinet to discuss whether a president possessed the authority to deny information to Congress. The Cabinet and the president agreed that the chief executive indeed had such authority when exercised in the public interest. The president communicated this view to Congress in writing. Washington eventually decided to cooperate with the congressional inquiry and turned over the requested materials. But he had first laid the groundwork for the presidential use of what is now known as executive privilege.
The standard established by Washington – that presidential withholding of information from Congress must be exercised only in the service of the public interest – remains the proper approach to this day. The evolution of executive privilege and of the legal decisions governing its use make it clear that this is a legitimate presidential power when used appropriately. Nonetheless, executive privilege took on a negative connotation when used by President Richard M. Nixon to withhold the White House tapes that contained incriminating evidence of his participation in a cover-up of illegal activity by administration officials. In the U.S. v. Nixon case, the U.S. Supreme Court unanimously ruled that executive privilege is a legitimate presidential power, though not an absolute one. Indeed, in a criminal investigation where evidence was needed to secure the pursuit of justice, the constitutional balancing test weighed in favor of turning over the White House tapes and against the president’s claim of privilege.
Nixon’s actions nonetheless gave executive privilege a bad name and thus created a dilemma for presidents who followed him. In the immediate post-Watergate environment, for many observers, executive privilege and presidential tactics to conceal wrongdoing were synonymous.
President Gerald R. Ford had the unenviable task of being the first chief executive to have to navigate the complications over the use of executive privilege in the wake of the Watergate scandal. In research for my book on executive privilege, I reviewed White House documents from the Ford years. In brief, the president accepted the legitimacy of executive privilege but he maintained a very low-key posture on the topic. He met with members of Congress who wanted to discuss proposed legislative action on limiting executive privilege and in so doing he emphasized his usual commitment to transparency while also issuing no statement about his policy on the use of executive privilege. Some members wrote to the president requesting that he provide a formal memorandum on his administration’s policy on executive privilege and he simply did not respond. Rather than adopt a formal policy on executive privilege, the president chose to address any presidential secrecy issues on a case-to-case basis.
Ford’s approach to executive privilege issues can only be understood within the context of the times politically. Adopting a formal policy on executive privilege likely would have invited an avalanche of public criticism and congressional condemnation. To many in the public and in Congress at that time, executive privilege and Watergate were intertwined. Ford’s approach surely frustrated those who had wanted him to take a clear public stand, but he did not see any advantage to wrapping up his presidency in a Nixon-era controversy. Ford thus preserved the presidential authority to exercise executive privilege while protecting himself and his presidency from any political fallout from the issue. That was the best possible outcome any president immediately following Nixon could have achieved.
Executive privilege effectively went underground for a long period, only occasionally showing up until the explosive allegations against President Bill Clinton in 1998-1999 that led to his impeachment. President Clinton made repeated claims of executive privilege to try to withhold testimony by aides called by the Office of Independent Counsel (OIC). Similar to the Nixon case, the presiding federal judge ruled that although presidents have legitimate needs for confidentiality, the OIC had made a compelling showing of the need for testimony to properly conduct a criminal investigation. Clinton lost in his effort to prevent the testimony of his aides, but the judge did reaffirm the legitimacy of executive privilege. In a number of other controversies, President Clinton claimed, or directed staff to claim, executive privilege, usually against congressional requests for information and testimony.
The Clinton era thus commenced a period in which presidents have acted without embarrassment about claiming executive privilege under a variety of circumstances. Whereas there is a long history of executive privilege disputes having been settled through an accommodation process that avoided any judicial intervention, in recent years the process has broken down. Presidential administrations often find that, rather than engage in an accommodation process, a claim of executive privilege can effectively delay investigations for long periods of time, and there is little political fallout for doing so. The Watergate taint of executive privilege has largely disappeared. Political polarization also has contributed significantly to the often refusals of elected officials to accept any form of give-and-take that long characterized the system of separated powers.
There have been occasional proposals in Congress to develop a clear statutory definition of the president’s power of executive privilege. Yet no such legislation has ever passed and it is unlikely that such an effort would reduce interbranch conflicts over access to information. Currently, there is an intriguing legislative solution being developed by Senators Sheldon Whitehouse (D-Conn.) and John Kennedy (R-La.). Their intended proposal would create a mediation role for the U.S. District Court of the District of Columbia. Effectively, the Court would proactively review and settle executive privilege claims at the very outset when made by presidents, thus eliminating the process of continual delays and obstruction to prevent disclosure of information and testimony to Congress. The perceived need for such a reform is an acknowledgment that the traditional accommodation process no longer works.
There is precedent for the proposed reform. In the past, Congress has elevated a role for that court in executive privilege disputes. The Presidential Records Act (PRA), for example, stipulates that the Court has jurisdiction over lawsuits by former presidents against disclosure. Will such a proposal, if enacted, work to overcome presidential misuse of executive privilege as a tactic of obstruction and delay, rather than as a shield to protect secrecy where legitimately needed? It’s impossible to know, but that we now are at such an impasse over how to accommodate the needs of presidents and congresses over a constitutional power tells us just how much the political norms have changed since Mr. Ford’s time in the White House.
Mark J. Rozell is Dean of The Schar School of Policy and Government at George Mason University (Virginia).
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