Executive Privilege in the Ford Administration: Prudence in the Exercise of Presidential Power
Rozell, Mark J., Presidential Studies Quarterly
The Watergate crisis brought the doctrine of executive privilege--which recognizes the right of the president to withhold information from the coordinate branches of government--to the forefront of political discourse in the United States. Although presidents for years had exercised some form of that controversial power, no single event had ever had such an impact on the exercise of executive privilege.
President Richard M. Nixon's extreme claims of executive privilege--based on his unsupported argument that executive privilege is an unrestricted presidential power that cannot be challenged by another branch of government--had the effect of giving a bad name to that doctrine.(1) In the post-Watergate years, Congress has become vigilant in its efforts to challenge presidential claims of executive privilege through the use of public hearings to shape public opinion, the subpoena power, contempt of Congress charges, and litigation. When it comes to executive privilege, the post-Watergate presidents have had to operate in the shadow of Richard M. Nixon.
This article examines the use of executive privilege in the Gerald Ford administration. Drawing primarily from Ford White House documents, I show how Ford tried to manage executive privilege controversies in the immediate post-Watergate years when, for many people, the phrase executive privilege had become synonymous with Nixonian abuses of power.
The Ford years represent an important transitional stage in the modern presidency. As he was the first post-Watergate president, members of Congress and the media vigorously challenged Ford's authority and veracity, even though such challenges were more suited to his predecessor. To be sure, his candor and efforts to lead an "open presidency" did much to move the nation beyond the cynicism and rancor of the Nixon years. Nonetheless, many members of Congress and political commentators believed that an important lesson of the Nixon years was that power in the hands of the executive leads to abuses of authority. Congress embarked on an unprecedented reform effort to invigorate its own authority in the separation of powers system and to limit the exercise of presidential powers. Congress also embarked on unprecedented investigations into the activities of the U.S. intelligence community.
It was against this backdrop that a number of executive privilege controversies arose during the Ford years. As the following analysis of White House documents shows, Ford crafted a strategy of making the occasional withholding of information possible by avoiding adopting a formal policy on executive privilege, avoiding the much maligned phrase executive privilege as much as possible, and citing statutory authority instead of presidential prerogatives as the basis for keeping secrets. That strategy was prudent, given Congress's post-Watergate efforts to vigorously challenge presidential claims and exercises of independent powers. Ford understood that politically he would fail in his efforts to withhold information if he adopted a strategy of publicly defending presidential prerogatives. He chose instead to manage access to information disputes on a case-by-case basis and avoid drawing attention to the controversial doctrine of executive privilege. Consequently, Ford carefully chose only a few executive privilege battles with Congress--ones that he considered to be the most important secrecy issues in his administration and that he thought he could win.
The White House documents reveal that, although Ford pledged to conduct an "open presidency," his actions were calculated to protect the institutionalized secret presidency. Consequently, despite a widespread perception after Watergate that profound change in the operation of the presidency had occurred, Ford projected the image of openness and change while crafting a strategy to protect presidential powers and maintain continuity.
Ford's "Policy" toward Executive Privilege
Ford's immediate predecessors--John F. Kennedy, Lyndon B. Johnson, and Richard M. Nixon--had each adopted a formal policy on the exercise of executive privilege. Each had done so in response to an inquiry from Representative John E. Moss (D-CA) on administration policy toward executive privilege. Each had consequently adopted a policy whereby only the president could assert or approve the use of executive privilege. The Nixon White House adopted the most elaborate executive privilege procedures. Those procedures emphasized that executive privilege "must be very narrowly construed" and would "not be asserted without specific presidential approval."(2) Such guidelines contradicted Nixon's Watergate defense of an unlimited executive privilege power.(3)
Unlike his predecessor, President Ford never issued a formal memorandum or executive order specifying his administration's policy on executive privilege. A review of White House documents reveals that certain members of the Ford administration raised the subject of developing a set of procedures for handling executive privilege controversies. Certain members of Congress sent letters to the president requesting that such a set of procedures be issued. The White House even composed a draft executive order on executive privilege, but Ford never issued the order. If there was any Ford White House strategy on executive privilege, it was to avoid controversy as much as possible by not issuing a formal policy, avoiding the use of the phrase executive privilege in favor of other descriptions for decisions to withhold information, and, when possible, citing statutory authority to deny requested information. Ford did say that he believed that the president had the right of executive privilege, and Ford exercised that power on a few occasions to protect what he considered vital national security information.
Within one week of the Ford inauguration, Representative John E. Moss sent a letter to the president requesting that Ford adopt a formal policy on executive privilege in which the constitutional doctrine could be "invoked only by the president or with specific presidential approval in each instance." Moss noted that he had received commitments from Presidents Kennedy, Johnson, and Nixon to limit the use of executive privilege to personal claims by the president.(4)
Ford never directly responded to the Moss letter, breaking the precedent established by the president's three predecessors. Only the deputy assistant to the president, Max L. Friedersdorf, responded to Moss's letter and assured the congressman that the letter would be shared with the president's advisers.(5)
Ford also received a letter on executive privilege from Representatives John N. Erlenborn (R-IL) and William S. Moorhead (D-PA) on August 13, 1974, and another jointly written letter on executive privilege from Senators Sam Ervin (D-NC), William V. Roth (R-DE), and Edmund S. Muskie (D-ME) on August 22, 1974. Friedersdorf acknowledged the Erlenborn letter, and Assistant to the President William E. Timmons acknowledged the senators' letter.(6) The Ford administration took no formal action on the matters raised in these letters.
On September 19, 1974, the general counsel to the Office of Management and Budget (OMB), Stanley Ebner, expressed his concern to the counsel to the president, Philip W. Buchen, that "President Ford has taken no public position on the issue of executive privilege." Ebner noted that the OMB had to deal with numerous "requests for information or records from the Congress and from outside government." He recalled President Nixon's memorandum on executive privilege and concluded that "you will no doubt want to give some consideration to the question of a possible reaffirmation or modification of this policy by the president on his own initiative."(7)
William E. Timmons advised Buchen on September 23, 1974, to "research the issue [of executive privilege] and get guidance from the president on how he plans to handle this ticklish problem when it is raised." Timmons wrote that members of Congress would press for disputed information on Watergate, the Nixon pardon, and other matters, making it imperative that the president set some guidelines on the use of executive privilege.(8)
That same day, Timmons and Friedersdorf proposed a meeting between the president and Representatives Erlenborn and Moorhead to discuss pending legislation on executive privilege.(9) The meeting was held for fifteen minutes on October 10, 1974, at the Oval Office. There is no record of what was said in the meeting, but a White House background paper for the meeting identified "talking points" for the president. The talking points noted that Ford would emphasize his desire to run an open administration and that he would value the "views and recommendations" of the congressmen on the topic of executive privilege.(10) The legislative proposal on executive privilege that provided the basis for the meeting failed to pass Congress.
The Ford White House continued to use an ad hoc group, formed in the Nixon administration, to make recommendations on information policy issues, including those pertaining to the Freedom of Information Act (FOIA) and executive privilege. A September 24, 1974, memorandum from the executive director of the Domestic Council on the Right of Privacy, Doug Metz, to Philip W Buchen outlined several recommendations and presidential options on the topic of executive privilege. The memorandum made clear that Ford's options on executive privilege were limited because that subject was "inextricably bound up with Watergate." The memorandum advised Ford to meet with members of Congress on the subject, to affirm the intention to conduct an open presidency, to avoid an outright defense of the constitutional prerogative of executive privilege, and to issue an executive order on the subject "affirming the traditional commitment to prudence in the exercise of the privilege." A discussion draft of an executive order titled "Establishing a Procedure for Determining Whether Executive Privilege Should Be Invoked" accompanied the memorandum. Also included was a proposed draft letter on executive privilege for the president to issue to all federal employees.(11) The intention of the executive order and the letter was to formalize a presidential position on executive privilege. Ford never issued the proposed executive order and letter.
A September 25,1974, memorandum from Associate Counsel Dudley Chapman to Philip W Buchen summarized executive privilege issues before the administration and offered recommendations for handling the subject. Echoing the Metz memorandum, Chapman stated that "the unfavorable connotations of executive privilege and the present mood of Congress dictate a sharp break from traditional practice." Chapman also recommended that Ford adopt a formal policy on executive privilege rather than try to deal with each controversy on a case-by-case basis. Chapman believed that Ford needed to acknowledge the legitimacy of Congress's various requests for information and to meet with the congressmen who had written letters to the president urging the adoption of legislation to limit the use of executive privilege.(12)
In November, Chapman followed up with another executive privilege memorandum. This memorandum noted the difficulty posed by the new personalities in Congress who were requesting executive branch information and who "no longer give up when they are told no." Chapman maintained that "many of the requests we are now getting cannot be resolved through traditional compromise because the purpose of the request is to test the principle." Chapman offered suggestions for getting around executive privilege controversies. For example, (1) cite exemptions from the FOIA as the basis for withholding information "rather than executive privilege"; (2) use executive privilege as a last resort--even avoid the use of the term in favor of presidential or constitutional privilege, confidential working papers, and so forth; and (3) issue formal guidelines on the use of executive privilege. Chapman noted that congressional requests for a formal presidential declaration on executive privilege remained unanswered.(13)
The issue of how the White House should treat executive privilege controversies remained unresolved throughout the Ford years. On April 4, 1975, a discussion of how to handle executive privilege controversies was held at the Office of the Deputy Counsel to the President. The discussion summary makes clear that the administration lacked a set of guidelines for handling executive privilege controversies.(14)
In late November 1975, Buchen sent a memorandum to all senior White House staff and members of the cabinet summarizing access to information controversies before the administration. The memorandum cited the use of statutory bases for refusing information in some cases, compliance with congressional requests in a number of cases, and the use of executive privilege as a basis to withhold information in a few cases. Part 3 of the memorandum is titled "Procedures for Asserting Executive Privilege," which summarized the procedures adopted by some of Ford's predecessors. It identified no such procedures for the Ford administration. In fact, the only mention of Ford in this section was the fact that the president, in response to a question, had told Congress that he believed in the principle of executive privilege and in the right of confidentiality for each branch of government.(15)
A November 1975 memorandum on executive privilege from the Office of the Attorney General noted the need to approach the subject when it arises "in a systematic fashion." The memorandum was "intended to facilitate the construction of a framework for future actions." The memorandum further suggested categories of areas in which executive privilege could be asserted and the levels of priority to be granted to the stated purposes for withholding information.(16)
What is the most telling about all of these memoranda and letters is just how much effort the Ford administration devoted to discussing how to handle the controversial issue of executive privilege. Despite all of this discussion, the president never adopted a formal policy on the use of executive privilege. His administration dealt with executive privilege controversies on a case-by-case basis.
To understand Ford's handling of this subject, the political context of that period must be acknowledged. To have adopted a formal and, hence, public position on executive privilege would have invited an avalanche of public protest and congressional condemnation of Ford's action, no matter if the president had adopted a reasonably restricted policy toward the exercise of such a presidential power. To many in the public and in Congress, executive privilege and Watergate were intertwined. Ford's decision to not adopt a formal policy on executive privilege--and only one that would have severely weakened the constitutional doctrine could have been conceivable at that time--was prudent, given the difficult environment in which he governed. It was the one way in which Ford could project an image of openness and change, even though his actions were calculated to protect institutionalized presidential powers.
Ford's Exercise of Executive Privilege
In the wake of Watergate, President Ford projected a willingness to accommodate the needs of Congress. On August 12, 1974, three days after taking the presidential oath of office, Ford addressed members of Congress from the House chambers. He clearly stated that he intended to be very different from his predecessor:
As president ... my motto toward the Congress is communication,
conciliation, compromise and cooperation. This Congress, unless it has
changed, will be my working partner as well as my most constructive
critic. I am not asking for conformity... I do not want a honeymoon with
you. I want a good marriage.... My office door has always been open, and
that is how it is going to be at the White House.
... there will be no illegal tapings, eavesdropping, buggings or
break-ins by my administration. There will be hot pursuit of tough laws to
prevent illegal invasion of privacy.(17)
Ford's speech drew an enormously favorable response from the legislators. In retrospect, it seems remarkable that members of Congress would feel moved to applaud with such enthusiasm a presidential pledge not to break the law or abuse power. But this response must be understood within the context of the times. Members of Congress were delighted to be rid of Nixon, and they saw in Ford--a former House member--hope for the beginning of an era of presidential-congressional cooperation. A reporter from The New York Times wrote that the legislators were so overjoyed with Ford that "they probably would have cheered if he had read them a page from the telephone book."(18)
Ford's pledge of cooperation, along with his promise to run an open presidency, certainly created high expectations among members of Congress. Nonetheless, regarding the doctrine of executive privilege, some members of Congress wanted to test the limits of how far Ford would go in exercising this presidential power. And despite his pledge to cooperate with Congress, Ford never conceded that the legislature had the right of access to sensitive executive branch information.
The Nixon Pardon
The unpopular presidential pardon of Richard M. Nixon on September 8, 1974, set back much of the progress Ford had made in establishing a relationship with members of Congress based on trust. Many members of Congress reacted angrily, not only to the decision itself, but to the secretive manner in which Ford considered and then issued the pardon. The way that Ford handled the pardon decision, dropping it on an unsuspecting country one Sunday morning, "like Pearl Harbor," as Deputy Press Secretary John W. Hushen described it, also fueled speculation that Nixon and Ford had struck an unseemly deal: the White House for a pardon.(19)
To determine whether any such deal had taken place, some members of Congress sought to compel testimony from Ford's legal counsel Phil Buchen and other White House staffers. These requests for congressional testimony from the White House staff led to the first executive privilege controversy during Ford's presidency. The president ended the controversy on September 30, 1974, when he agreed to appear before Congress to answer questions about his decision to pardon Nixon.(20) During the October 17, 1974, nationally televised appearance before the House Subcommittee on Criminal Justice, Ford said that "the right of executive privilege is to be exercised with caution and restraint." Furthermore, he explained that "I feel a responsibility, as you do, that each branch of government must preserve a degree of confidentiality for its internal communications.(21) In effect, Ford projected a conciliatory tone while affirming presidential authority to assert executive privilege.
Aid to South Vietnam
During his brief term in office, Ford went to unusual lengths to provide information to Congress in areas where previous presidents had been reluctant to cooperate with legislative inquiries. The president agreed to furnish Congress with requested information on the activities of the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI). Ford turned over to Congress previously withheld information that was relevant to inquiries into alleged CIA complicity in assassination schemes. Nonetheless, Ford did draw the line with Congress over certain requests for information. In 1975, the Senate judiciary Subcommittee on Separation of Powers requested from Ford the release of information on correspondence between President Nixon and South Vietnamese President Nguyen Van Thieu regarding promises of U.S. aid to South Vietnam in the case that North Vietnam did not honor the Paris Peace Accords. On May 1, 1975, Ford declared that he would not release any of the disputed documents and letters. The subcommittee declared Ford as "adamant in his refusal" to release the materials but could do little more than to hold hearings on the issue of congressional access to executive branch information.(22)
In some cases, information disputes between the president and Congress did not result in an explicit claim of executive privilege. Because of the controversial nature of the constitutional doctrine in light of Nixon's actions, the Ford White House adopted a strategy of occasionally citing statutory authority to withhold information, thereby getting around the need to raise the issue of and to defend executive privilege.(23) Two cases in particular show that the strategy to substitute statutory law for executive privilege as the basis for withholding information from Congress did not work.
Request for Survey of Hospitals
On October 23, 1975, Representative John Moss, chairman of the Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce, requested from the secretary of the Department of Health, Education, and Welfare (HEW), F. David Mathews, information on surveys of hospitals conducted by the joint Commission on Accreditation of Hospitals. On the advice of counsel, Mathews refused the request and cited as the basis for refusal the Social Security Act's confidentiality provision (section 186a). The subcommittee challenged Mathews and issued a subpoena for the information. On November 12, 1975, Attorney General Edward Levi advised Mathews that the confidentiality provision of the Social Security Act was not a strong enough basis for an executive branch official to withhold information requested by Congress. The provision only pertained to not making information public. Subsequently, Mathews ended the controversy by turning the requested information over to Congress.(24)
Confidential Export Reports(25)
On July 10, 1975, Chairman Moss requested from the Department of Commerce's Director of the Office of Export Administration copies of all quarterly reports filed by exporters under the Export Administration Act of 1969. Moss's subcommittee was investigating the extent to which U.S. companies had been requested by Arab countries not to conduct business with Israel. On July 24, 1975, the secretary of the Department of Commerce, Rogers C. B. Morton, sent to Moss a summary of Israel boycott information reported by U.S. companies. Morton refused to submit the requested quarterly reports and based his authority for such a refusal on section 7(c) of the Export Administration Act:
No department, agency, or official exercising any functions under this
Act shall publish or disclose information obtained hereunder which is
deemed confidential or with reference to which a request for confidential
treatment is made by the person furnishing such information, unless the
head of such department or agency determines that the withholding thereof
is contrary to the national interest.(26)
The subcommittee responded on July 28, 1975, by issuing a subpoena for the documents. On September 4, 1975, Attorney General Levi issued an opinion to Morton that section 7(c) of the Export Administration Act applied to Congress and that it was therefore proper to withhold the disputed documents. Morton appeared before the subcommittee on September 22, 1975, and informed the subcommittee members of the attorney general's opinion that it was proper to withhold the reports. Morton did offer to provide Congress with summaries of information in the reports, but this failed to satisfy the subcommittee members who insisted on having access to the actual reports that contained the names of companies participating in the boycott of Israel.(27)
The subcommittee held hearings on this controversy on October 11 and 12, 1975, and heard testimony from legal scholars on executive branch withholding of information from Congress. On November 11, 1975, the subcommittee passed a resolution to hold Morton in contempt of Congress. The Interstate and Foreign Commerce Committee scheduled a meeting to discuss the contempt resolution. The day before the meeting was scheduled to be held, Morton agreed to show the disputed documents to Chairman Moss, with the understanding that the information would not be made public. The contempt of Congress proceedings against Morton were dropped, as Congress finally achieved the result that it had desired.
House Select Committee on Intelligence Subpoenas(28)
On November 6, 1975, the House Select Committee on Intelligence, chaired by Representative Otis Pike (D-NH), issued seven subpoenas on the Ford administration. The committee issued five of those subpoenas to the National Security Council (NSC). On November 11, 1975, Lieutenant General Brent Scowcroft, deputy assistant to the president for national security affairs, responded to the subpoenas by forwarding the available requested documents to the committee and promising to furnish the remaining requested materials when available. The NSC did not claim executive privilege over any of the documents.
The committee issued one subpoena to the CIA. On November 11, 1975, the special counsel to the CIA, Mitchell Rogovin, responded to the subpoena with a letter to the committee providing the requested information. The CIA also did not claim executive privilege in this case.
Finally, the committee issued a subpoena to Secretary of State Henry Kissinger to compel disclosure of all documents pertaining to Department of State recommendations to the NSC on covert activities drafted since January 20, 1965, forward. In this case, President Ford formally directed Kissinger to assert executive privilege over the documents. On November 14, 1975, the Department of State legal adviser informed the committee of Ford's decision. That same day, the committee cited Kissinger for contempt and recommended that the Speaker of the House
certify the report of the Select Committee as to the contumacious conduct of
Henry A. Kissinger, as Secretary of State, in failing and refusing to
produce certain pertinent materials in compliance with a subpoena duces
tecum of said Select Committee ... under the seal of the House of
Representatives to the United States Attorney for the District of Columbia,
to the end that Henry A. Kissinger, as Secretary of State, may be proceeded
against in the manner and form provided by law.(29)
In a letter to Pike on November 19, 1975, the president wrote that
in addition to disclosing highly sensitive military and foreign affairs
assessments and evaluations, the documents revealed to an unacceptable
degree the consultation process involving advice and recommendations to
Presidents Kennedy, Johnson and Nixon, made to them directly or to
committees composed of their closest aides and counselors.(30)
A White House memorandum from Philip W. Buchen, counsel to the president, reveals a number of bases for the assertion of executive privilege in this case. In particular, the memorandum cited U.S. v. Nixon and instances in the Eisenhower and Kennedy administrations of "presidential directives to Cabinet members not to release certain information to Congress."(31) Eventually, the administration and Congress reached a compromise in which committee members and staff would attend an oral briefing on the information contained in the disputed materials. The committee recommitted its report, recommending a citation of contempt for Kissinger before the House of Representatives had an opportunity to vote on the measure.
Electronic Surveillance Controversy(32)
The most controversial case of presidential withholding of information during the Ford administration occurred in 1976, and resulted in a complex series of interbranch negotiations as well as legal disputes over a two-year period into Jimmy Carter's term of office. This controversy involved the use of warrantless wiretaps on citizens for national security purposes. In brief, the FBI had sent letters to the American Telephone and Telegraph Company (AT&T) requesting that certain individuals be placed under electronic surveillance. The House Committee on Interstate and Foreign Commerce subpoenaed the letters and other documents on behalf of the Subcommittee on Oversight and Investigations. The subcommittee wanted to investigate the extent of wiretapping activity, the names of individuals subject to surveillance, whether the wiretaps truly were for national security reasons, and whether these activities were being carried out in accordance with existing laws.
The president refused to divulge the requested letters and documents. He claimed national security concerns as the basis for this refusal. Ford did offer a compromise in which he would supply the committee with the attorney general's memoranda citing the reasons for the surveillance, as well as a sample list of surveillances with the names of the objects of wiretaps deleted. The subcommittee rejected the compromise, maintaining that Ford had not offered enough information to determine whether abuses had actually taken place.
AT&T decided that it should comply with the congressional subpoena and supply the requested materials to the subcommittee. The Department of Justice sued AT&T to prohibit the company from turning over the materials. Ford maintained that the company had an obligation "as an agent of the United States" to comply with the subpoena.(33) The District Court sided with Ford and enjoined AT&T from releasing the disputed materials. The District Court determined that, because the controversy concerned a national security matter and that disclosure of the disputed materials to the subcommittee possibly could lead to public disclosure of sensitive information, there must be deference to the executive.(34)
The subcommittee chairman, Representative John Moss, appealed the case on behalf of the House of Representatives. The Court of Appeals rejected the District Court decision to defer to the executive branch but nonetheless upheld the injunction against AT&T, The Court of Appeals remanded the dispute to the District Court for further negotiation between the political branches.(35) Negotiations failed to resolve the dispute, and the case again went to the Court of Appeals.(36) Again, the Court of Appeals refused to side with either branch and encouraged further interbranch negotiation and compromise. The Court of Appeals did suggest procedures for sampling disputed materials and in-camera inspection by the District Court.(37) Eventually, the executive and legislative branches agreed on a procedure in which committee counsel received certain intelligence memoranda. The committee decided that it had achieved its goal in gaining access and determined that there had been no abuse of surveillance authority. In December 1978, both parties to the dispute agreed to dismiss the case.
In this dispute over information, the judicial branch served as a facilitator of negotiations between the political branches. The Court of Appeals acknowledged the executive's legitimate national security claims and the legislature's legitimate need for information to conduct investigations. Rather than decide completely in favor of either claim, the Court of Appeals worked to get the two parties to compromise. Although the resolution to this controversy does not stand as an affirmation of either the executive or legislative position, it does stand as testimony to Congress's ability to get disputed information from the executive when motivated to do so.
Executive Privilege in the Ford Administration
The above review illustrates just how sensitive an issue executive privilege had become immediately after Watergate. Ford never rejected the legitimacy of that constitutional doctrine. But given the nature of the post-Watergate environment, he was in no position politically to make a vigorous, public defense of executive privilege. Ford never issued any formal policy on his administration's use of executive privilege. He avoided personally responding to congressional inquiries regarding his administration's policy on executive privilege. In the spirit of the open administration, Ford gave Congress unprecedented access to information about the activities of the CIA and the FBI. To the extent possible, his White House purposefully avoided the use of the phrase executive privilege and used other legal bases for withholding information (e.g., statutory law, separation of powers doctrine). Although Ford's White House held extensive discussions over how to handle executive privilege controversies, the president avoided taking any public position on the issue that was more specific than support in principle for the doctrine. Ford understood well enough the nature of the post-Watergate environment and did not wish to unnecessarily stir up any controversy over such an issue so closely linked to the Nixon presidency as executive privilege. Ford acted prudently in following a cautious, nonconfrontational approach toward executive privilege. By managing conflict over access to information, he had some success in withholding what he considered to be vitally important information and left the broader constitutional debates over executive privilege to a future administration.
The Ford White House documents on executive privilege conflict with the widespread perception of the thirty-eighth president as a "caretaker" and "a nice person who worked at the job."(38) Although it would be an exaggeration to conclude from the above evidence that Gerald Ford was a successful practitioner of "hidden-hand leadership," it is nonetheless clear that on executive privilege matters, he did exercise the kind of crafty, behind-the-scenes political strategy for which he has received little or no recognition. Given his lack of an electoral mandate, it was necessary for Ford to adopt such a strategy to achieve his goal of protecting the secret presidency.
Consequently, Ford's actions on executive privilege are a reflection of what Jones calls the "separated presidency."(39) That is, a president who is separated from the rest of the political system has to "react strategically, devising techniques for retaining his prerogatives."40 A president with a large political mandate can be expected to adopt leadership strategies that build on his support. A president such as Ford--one with no mandate who must establish his legitimacy to lead--will adopt different strategies based on his unusual circumstances. Ford's effort to project the image of openness while protecting the secret presidency represents the strategy of a separated president to both establish his legitimacy before the people while protecting the prerogatives of his office.
(1.) When questioned about the limits of presidential authority, Nixon told journalist David Frost that when the president does it, that means it is not illegal." See "Nixon: A President May Violate the Law," U.S. News & World Report, May 30, 1977, p. 65. During an oral argument in U.S. v. Nixon, the president's attorney told the Court justices that the Court only has the power to "give guidance and judgment with respect to the law" but cannot limit the presidential exercise of power in anyway. See U.S. Senate, Executive Privilege--Secrecy in Government, Hearings before the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, 94th Cong., 1st sess., September 29 and October 23, 1975, p. 598. Although Nixon's actions had the effect of giving a bad name to executive privilege, the leading scholarly work on the subject lent credibility to the view that such a power always is illegitimate. See Raoul Berger, Executive Privilege: A Constitutional Myth (Cambridge, MA: Harvard University Press, 1974).
(2.) Letter from President Richard M. Nixon to Representative John E. Moss, April 7, 1969, folder: "Executive Privilege (2)," box 13, Edward Schmults Files, Gerald R. Ford Library (GRFL), Ann Arbor, Michigan.
(3.) Brief of Richard M. Nixon in Opposition to Plaintiff's Motion for Summary judgment, Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973).
(4.) Letter from John E. Moss to President Gerald R. Ford,August 15, 1974, folder: "Executive Privilege (2)," box 13, Philip W. Buchen Files, GRFL.
(5.) Letter from Max L. Friedersdorf to John E. Moss, August 16, 1974, folder: "Executive Privilege (2)," box 13, Philip W. Buchen Files, GRFL.
(6.) Letter from Representatives John N. Erlenborn and William S. Moorhead to President Gerald R. Ford, August 13, 1974; Letter from Senators Sam Ervin, Edmund S. Muskie, and William V. Roth to President Gerald R. Ford, August 22, 1974; Letter from Max Friedersdorf to Representative John N. Erlenborn, August 16, 1974; Letters from William E. Timmons to Senators Sam Ervin, Edmund S. Muskie, and William V. Roth, August 28, 1974, folder: "Executive Privilege--General (2),"box 13, Edward Schmults Files, GRFL.
(7.) Memorandum from Stanley Ebner to Philip W Buchen, September 19, 1974, folder: "Executive Privilege (2)," box 13, Philip W Buchen Files, GRFL.
(8.) Memorandum from William E. Timmons to Philip W. Buchen, September 23, 1974, folder: "Executive Privilege (2)," box 13, Philip W. Buchen Files, GRFL.
(9.) White House Schedule Proposal, September 23, 1974, folder: "Executive Privilege (2)," box 13, Philip W. Buchen Files, GRFL.
(10.) Agenda: Meeting with Moorhead and Erlenborn, October 9, 1974, folder: "Executive Privilege (2)," box 13, Philip W. Buchen Files, GRFL.
(11.) Memorandum from Doug Metz to Philip W. Buchen, September 24, 1974, folder: "Executive Privilege---General (2)," box 13, Edward Schmults Files, GRFL.
(12.) Memorandum from Dudley Chapman to Philip W Buchen, September 25, 1974, folder: "Executive Privilege--General (2)," box 13, Edward Schmults Files, GRFL.
(13.) Memorandum from Dudley Chapman to Philip W Buchen, et al., November 5, 1974, folder: "Executive Privilege--General (1)," box 13, Edward Schmults Files, GRFL.
(14.) Participants in the discussion included Solicitor General Robert Bork; Assistant Attorney General for the Office of Legal Counsel Antonin Scalia; Martin Richman, former adviser to Presidents Kennedy and Johnson; Department of Justice Officer Robert L. Keuch; and two members of Ford's White House staff, Rod Hills and James Wilderotter. Note from Robert L. Keuch to Rod Hills, April 7, 1975, folder: "Executive Privilege (4)," box 13, Philip W. Buchen Files, GRFL.
(15.) Memorandum from Philip W. Buchen to Members of the Cabinet and Senior White House Staff, November 21, 1975, folder: "Executive Privilege (5)," box 13, Philip W. Buchen Files, GRFL.
(16.) Memorandum from the Office of the Attorney General-Privilege of the Executive Branch to withhold Information from Congressional Committees, November 1975, folder: "Executive Privilege (3)," box 13, Philip W. Buchen Files, GRFL.
(17.) Gerald R. Ford, A Time to Heal (Norwalk, CO: Easton, 1987), p. 134.
(18.) Clifton Daniel, "Ford's Speech: Same Priorities," New York Times, August 13, 1974, p. 21.
(19.) Author interview with John W. Hushen, Washington, DC, May 14, 1990.
(20.) Stanley I. Kutler, The Wars of Watergate: The Last Crisis of Richard Nixon (New York: Knopf, 1990), p. 570.
(21.) Quoted in Memorandum from Philip W. Buchen to Members of the Cabinet and Senior White House Staff, November 21, 1975, folder: "Executive Privilege (5)," box 13, Philip W. Buchen Files, GRFL.
(22.) Dom Bonafede, Daniel Rapoport, and Joel Havemann, "The President Versus Congress: The Score Since Watergate," National Journal, May 29, 1976, p. 738; Robert G. Dixon, "Congress, Shared Administration, and Executive Privilege," in Congress against the President, ed. Harvey C. Mansfield, Sr. (Westport, CT. Praeger, 1975), p. 129.
(23.) See Memorandum from Dudley Chapman to Philip W. Buchen, et al., November 5, 1974, folder: "Executive Privilege (1)," box 13, Edward Schmults Files, GRFL. See also, Memorandum from Philip W. Buchen to Members of the Cabinet and Senior White House Staff, November 21, 1975.
(24.) Memorandum from Philip W. Buchen to Members of the Cabinet and Senior White House Staff, November 21, 1975.
(25.) This section is summarized from the following sources: Memorandum from Philip W. Buchen to Members of the Cabinet and Senior White House Staff, November 21, 1975; Richard Ehlke, "Congressional Access to Information from the Executive: A Legal Analysis," CRS Report to Congress (Washington, DC: Congressional Research Service, March 10, 1986), pp. 41-43; Peter M. Shane, "Negotiating for Knowledge: Administrative Responses to Congressional Demands for Information,"Administrative Law Review, 44, no. 2 (Spring 1992): 202-3.
(26.) 50 U.S.C. Appl. 2406(c) (1969).
(27.) U.S. Congress, Contempt Proceedings against Secretary of Commerce, Rogers C. B. Morton. Hearings before the Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce, House of Representatives, 94th Cong., 1st sess., 1975, p. 11.
(28.) This section is summarized from the following sources: Richard Ehlke, "Congressional Access to Information: Selected Problems and Issues," CRS Report to Congress (Washington, DC: Congressional Research Service, October 16, 1979), pp. 19-21; Richard Ehlke, "Congressional Access to Information from the Executive: A Legal Analysis," p. 20n; Memorandum from Philip W. Buchen to Members of the Cabinet and Senior White House Staff, November 21, 1975.
(29.) House Report No. 94-693, 94th Cong., 1st sess., 1975. Quoted in Ehlke, "Congressional Access to Information: Selected Problems and Issues," pp. 19-20.
(30.) Letter from President Ford to Representative Otis Pike, November 19, 1975. Quoted in Ehlke, "Congressional Access to Information: Selected Problems and Issues," p. 20n.
(31.) Memorandum from Philip W. Buchen to Members of the Cabinet and Senior White House Staff, November 21, 1975.
(32.) This section is summarized from A. Stephen Boyan, ed., Constitutional Aspects of Watergate (Dobbs Ferry, NY Oceana, 1979), vol. 5, pp. 183-88; Ehlke, "Congressional Access to Information from the Executive," pp. 9-14.
(33.) Boyan, Constitutional Aspects, p. 184.
(34.) United States v. AT&T, 419 F. Supp. 454 (D.D.C. 1976).
(35.) United States v. AT&T, 551 F. 2d 384 (D.C. Cir. 1976).
(36.) United States v. AT&T, 567 F. 2d 121 (D.C. Cir. 1977).
(37.) 567 F. 2d at 131-33.
(38.) At the Hofstra University conference on the Ford presidency, several journalists and White House aides discussed these aspects of the Ford image. The discussants included Robert T. Hartmann, Larry Speakes, Jerald F. terHorst, Clark Mollenhoff, Martin Schram, Robert Shogan, and Tom Brokaw. See Bernard J. Firestone and Alexej Ugrinsky, eds., Gerald R. Ford and the Politics of Post-Watergate America (Westport, C T: Greenwood, 1992), vol. 2, pp. 649-63.
(39.) Charles O. Jones, "The Separated Presidency--Making It Work in Contemporary Politics," in The New American Political System, ed. Anthony King (Washington, D.C.: American Enterprise Institute, 1990), 2d ed., pp. 1-28.
(40.) Ibid., p. 19.…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Executive Privilege in the Ford Administration: Prudence in the Exercise of Presidential Power. Contributors: Rozell, Mark J. - Author. Journal title: Presidential Studies Quarterly. Volume: 28. Issue: 2 Publication date: Spring 1998. Page number: 286+. © 1999 Center for the Study of the Presidency. COPYRIGHT 1998 Gale Group.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.