Executive Privilege Revived?: Secrecy and Conflict during the Bush Presidency

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INTRODUCTION

Although well established now as a legitimate presidential power, executive privilege remains controversial. Executive privilege is controversial in part because some presidents have overreached in exercising this authority. Presidential attempts to conceal evidence of wrongdoing during the Watergate scandal that led to President Richard Nixon's resignation and during the scandal that led to President Bill Clinton's impeachment gave executive privilege a bad name.

The phrase "executive privilege" does not appear in the Constitution. To be precise, that phrase was not a part of the common language until President Eisenhower's administration, leading some to suggest that executive privilege therefore cannot be constitutional. (1) These semantic, textualist challenges to executive privilege's constitutionality fail when viewed through a broader, historical lens of past interbranch disputes. In fact, every president since George Washington has exercised some form of what is today called executive privilege, regardless of the words used to describe their actions. (2) As Louis Fisher has pointed out, "[o]ne could play similar word games with `impoundment,' also of recent vintage, but only by ignoring the fact that, under different names, Presidents have from an early date declined to spend funds appropriated by Congress." (3)

Executive privilege is an implied power derived from Article II. (4) It is most easily defined as the right of the president and high-level executive branch officers to withhold information from those who have compulsory power--Congress and the courts (and therefore, ultimately, the public). This right is not absolute, as executive privilege is often subject to the compulsory powers of the other branches. The modern understanding of executive privilege has evolved over a long period as the result of presidential actions, official administration policies, and court decisions. Today, executive privilege is considered most legitimate when used to protect; first, certain national security needs, and second, the confidentiality of White House deliberations when it is in the public interest to do so. Related to the second, executive privilege may be appropriate in circumstances where confidentiality is necessary to protect ongoing executive branch investigations.

After the Watergate scandal, several presidents exercised executive privilege either very cautiously or ineffectively. Not until the Clinton administration did a post-Watergate president make a concerted effort to exercise this presidential power. (5) Yet, most of President Clinton's uses of executive privilege were indefensible because he asserted this power in circumstances that were far beyond widely accepted norms. In the early stages of his administration, President George W. Bush has already made substantial use of executive privilege in circumstances where the exercise of that power is highly debatable.

This Essay focuses on the various uses of executive privilege during the early stage of President George W. Bush's administration. President Bush has exercised the privilege in an attempt to reestablish what he perceives as a more correct balance of powers between the legislative and executive branches. Still, because President Bush has departed from recognized executive privilege norms, he has ultimately weakened executive privilege.

I. BACKGROUND

The most important modern articulation of executive privilege standards was the Reagan administration's executive privilege memorandum. (6) On November 4, 1982, President Ronald Reagan issued an executive privilege memorandum to heads of executive departments and agencies. The Reagan procedures were generally similar to those in a 1969 Nixon executive privilege memorandum. (7) For example, President Reagan's guidelines affirmed the administration policy "to comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. …