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‘Executive Privilege’ Has Storied History, but It Can Be Abused

What is executive privilege? Anyone who looks in the Constitution for an answer won’t find it there. Neither the concept nor the specific term are a part of the key document. (Of course, who looks in the Constitution these days when you can go right to Google?) [IMGCAP(1)]

But if the term and the concept are absent from the official record, the idea clearly was there at an early stage, seen by presidents from the get-go as an implied power stemming from the separation of powers.

In 1792, George Washington met with his Cabinet to consider a request for information from a Congressional committee investigating Gen. Arthur St. Clair’s failed expedition against the Indians. Washington said he thought the executive should give whatever papers met the public good and withhold those that would injure the public. The Cabinet concluded that the public would not suffer injury if the president turned over the papers. When the House wanted documents from Washington about the Jay Treaty, he refused, on the grounds that treaties were the sole province of the Senate (where he then sent the papers).

During the treason trial of Aaron Burr, Chief Justice John Marshall moved to compel President Thomas Jefferson to produce his private letters on the matter. Jefferson produced the letters — but said he had the power to withhold them and was complying voluntarily.

Over the years, presidents and Congresses, in their perpetual tug of war, have had disputes about what information the president should turn over to Congress; often, the resolution was just like that between Jefferson and Marshall — presidents would judge the political lay of the land and negotiate a deal to turn over some information, while asserting executive privilege and claiming the acts were voluntary.

Occasionally, a president would draw a line in the sand; President Dwight Eisenhower refused to turn over notes of his meetings with the Army to Sen. Joseph McCarthy’s (R-Wis.) investigative committee (however, Eisenhower escaped unscathed in part because McCarthy was already on the defensive). But it is more common to point to President Bill Clinton and his dispute with Independent Counsel Kenneth Starr; the president appeared before a grand jury with the terms of his appearance negotiated in detail beforehand.

Not all of the disputes over what information a president will give to Congress (or the courts) have been handled through political settlements or negotiations. The seminal case was United States v. Nixon in 1974. Here, the Supreme Court ruled on executive privilege when Watergate Special Prosecutor Leon Jaworski demanded that President Richard Nixon produce the audiotapes of his conversations with aides that dealt with the criminal investigation of his administration.

Nixon invoked executive privilege and refused to turn over any tapes. The Supreme Court actually acknowledged the existence of a privilege, the need to allow a president to get free and candid advice. But it denied that the president’s claim of absolute privilege could prevail and said in this case that the public interest was served by obtaining the full truth during a criminal prosecution. Nixon gave up the tapes — and days later resigned from office. A quarter-century later, Clinton was rebuffed by a federal judge when he invoked executive privilege during the Monica Lewinsky scandal to try to keep his aides from testifying.

Of course, my point is to provide some context for the double tug of war now going on between Congress and President Bush surrounding the release of information regarding the U.S. attorney controversy and the authorization of domestic surveillance without warrants. Subpoenas have been issued by both Judiciary committees to interview White House aides on the prosecutors’ dismissals, focusing on their communications with Justice Department officials, and for documents covering the legal justification of the surveillance program.

White House counsel Fred Fielding has refused to allow the aides to testify and has invoked executive privilege on the documents as well. Fielding’s original offer, to allow some aides to talk to some Members informally, with no oath, no transcript, no record, was of course laughable and has not been adjusted.

Subpoenas from Congress to presidential advisers are not exactly new or unusual. The House Government Reform Committee, under former Chairman Dan Burton (R-Ind.), issued dozens to Clinton aides during his heyday. But this set of new Congressional subpoenas raises especially interesting issues.

It may be a derived power, but executive privilege is a real power. It exists, as the Supreme Court said, to allow the president to have candid and free-flowing advice. But it is a presidential power. The logic is clear: It does not apply in a blanket way to every presidential aide; it applies when the information being sought impinges on the president’s ability to get that free-flowing advice — in other words, when the communications are directly or indirectly between the president and his aides, or the president and his executive branch advisers. It does not apply to communications between Justice officials and White House aides who are, say, discussing the politics of firing U.S. attorneys or the legal basis of a surveillance program.

Of course, if this gets pushed to a House or Senate contempt citation for the president, the politics may play out in a different way. And if it goes to the courts, the seemingly clear standards for executive privilege set in the Nixon case might be blithely overturned by Chief Justice John Roberts and his allies, who have no sympathy for Congress and a strong executive branch bias. But the bottom line on these cases is that Congress has the better case here, by far.

One other note: When Brett Kavanaugh testified before the Senate Judiciary Committee on his nomination for an appeals court judgeship, he said he was not involved at all in administration discussions about the treatment of enemy combatants. Now we have credible news stories saying that he was. The Senate has to get to the bottom of this.

Federal judgeships effectively are for life — and if a nominee lies to avoid embarrassment or to increase the chances of confirmation it is extremely serious — and the damage continues for years or decades. This may be a misunderstanding, or the reporting may be inaccurate. If it turns out that a federal judge did lie to the Senate to get confirmed, he ought to be impeached and removed from office.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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