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 …

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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.

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