Blogs > HNN > When do presidents assert executive privilege? When it's in their interest

Mar 21, 2007 6:54 pm

When do presidents assert executive privilege? When it's in their interest

Voters might think that the assertion of executive privilege is a matter of course for a president. It is not. When it's in their political interest they assert it, wrapping themselves in the flag as Defender of the White House! When it's not in their interest they relent and let Congress have what it wants.

Nixon's is the most famous case. He refused to turn over documents (in this case the Watergate tapes) until a unanimous supreme court made him. But he didn't have to resist. In the next major imbroglio the president chose to defer to congress. Gerald Ford marched up to capitol hill and testified in person about his pardon of Nixon. Invoking executive privilege apparently never occurred to him, which was fortunate. After Nixon the last thing the public wanted to hear was that another president was refusing to come clean.

The next big scandal was of course Iran-Contra. Once again Congress wanted to know what the president knew and when he knew it. Reagan decided to give them everything they wanted.

Clinton was the next president to face a major scandal. He chose to fight congressional demands for documents and testimony.

In each case there's one simple theme. Self-interest.

If President Bush wants to assert executive privilege, let him go ahead. But we shouldn't be under the impression he has to for the sake of his office. The Decider can decide the issue without worrying that he is under any obligation to assert a privilege on behalf of his successors.

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Adam Carman - 3/26/2007

Fair enough. As one, however, who is convinced of Washington's prudence in the Jay Treaty fiasco, I guess I am more open to accept claims of executive privilege though, of course, as you very rightly note, presidents should probably be more open than they are about why they do it. It seems to me a continuation of the old debate over the presidency in the Constitution itself. The anti-Federalists wanted a committee to share executive power. The Federalists noted, rightly in my opinion, that the kinds of things a President does--command the armed forces and lead the diplomatic branch--sometimes require speed and singleness of purpose (John Jay argued this in Federalist 64, I believe). The secrecy necessary in negotiations, for example, require that the popular branch not spread the story around. To me this seems fair enough.

That being said, however, there is certainly something a little shady about a President always claiming executive privilege (privilege = "private law"; do we really want a private law for certain individuals?) and getting a blanket pass. It is an interesting debate with deep roots in our history.

Rick Shenkman - 3/25/2007


In my initial draft of this post I started with Washington. But upon reflection I decided to restrict my discussion to more recent events.

I thought I could make my point sharpest by focusing on history with which readers were all likely to be familiar.

And my point is not that executive privilege is an invention of Nixon or Bush. My point is that when it suits them presidents are quite willing to abandon claims of executive privilege.

The case for executive privilege is that it's essential and that its impairment would be a blow to the power of the presidency.

But is there any real danger in the modern world that the presidency will become a cipher (as it was in the latter half of the 19th century)? When the president starts travelling abroad with a retinue of 10 people instead of a thousand I'll be willing to concede that the offrice has probably shrunk too far to be useful. But until then ....

Adam Carman - 3/25/2007

Washington should head the list. Early in his administration, he cooperated with the House of Representatives when they asked for inside information on a failed expedition against western Indian tribes. In 1796, however, when the House threatened to scuttle funding for the Jay Treaty unless they were allowed to review the instructions given to Jay and all his correspondence while in Britain, Washington refused. He told the unruly Representatives that the Treaty satisfied the Constitutional stipulation, having been made with the advice and consent of the Senate: "A just regard," he concluded, "to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request" (March 30, 1796). A President asserting his rights against the interference of Congress have far deeper roots than Nixon (although of course Washington did not use the term "executive privilege"). Right or wrong, it's been part of the office since the very beginning.

Stephen Kislock - 3/22/2007

Article. II

before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:e.g. G.W.B.I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my "Ability", this is the kicker the Lack of "Ability", To preserve, protect and defend the Constitution of the United States, from the Neo-Con Agenda!