The Law: Executive Privilege: Definition and Standards of Application

By Rozell, Mark J. | Presidential Studies Quarterly, December 1999 | Go to article overview

The Law: Executive Privilege: Definition and Standards of Application


Rozell, Mark J., Presidential Studies Quarterly


A core issue in the scandal that led to the impeachment of Bill Clinton was the president's elaborate use of executive privilege. Although nowhere mentioned in the Constitution, executive privilege has a long history in presidential politics. Presidents since George Washington have claimed the right to withhold information from the legislative, judicial, and, ultimately, the public. Despite this long history and the many precedents for its exercise, executive privilege remains a controversial power.

On the fringes of the debate are those, such as scholar Raoul Berger, who have argued that executive privilege simply does not exist in our constitutional system, and those, such as former President Richard Nixon, who maintained that this power is absolute and not open to challenge by the coordinate branches of government (Berger 1974; Letter from President Richard M. Nixon to Judge John Sirica 1973). The relevant debate today is over the proper scope and limits of executive privilege. Few any longer argue that executive privilege is a "myth." Fewer still cling to the belief that the privilege is an absolute presidential power not subject to the compulsory powers of the other branches.

One of the original proposed articles of impeachment against President Clinton concerned abuse of powers, in particular executive privilege, Many of the advocates of Clinton's impeachment argued reasonably that the use of executive privilege to conceal wrongdoing and to frustrate and thwart the legitimate inquiries of the Office of Independent Counsel (OIC) constituted an abuse of presidential powers. Yet, the executive privilege language did not stay in the article eventually voted out by the House Judiciary Committee (and later rejected by the full House). The authors of this article of impeachment either lacked sufficient confidence in their own constitutional argument or they simply believed that the chances of House approval were too slim.

The confusion over whether to proceed with the charge of abuse of executive privilege evidenced the fact that for many, the proper parameters of this constitutional doctrine remain unclear. During much of 1998, Clinton's lawyers argued that the president has a broad-based right to assert executive privilege and to deny that claim was nothing less than to strip away the legal protections for confidential White House deliberations. The OIC countered that the Clinton scandal involved personal rather than official governmental matters, and therefore the White House's various claims of executive privilege could not stand. Each side cited substantial constitutional law, scholarly opinion, and historic precedents in defense of its case (Ruff's argument for executive privilege 1998; White House motion seeking privilege 1998).

Judge Norma Holloway Johnson ultimately sided with the OIC--not because she believed that Clinton's arguments in defense of executive privilege were weak but rather because Independent Counsel Kenneth Start had made a compelling showing of need for access to the information shielded by executive privilege. Judge Johnson applied the classic constitutional balancing test, similar to that of the unanimous decision in U.S. v. Nixon (418 U.S. 683, 1974): in a criminal investigation, the need for evidence outweighs any presidential claim to secrecy (Judge Johnson's order on executive privilege 1998).

Judge Johnson's decision resolved the immediate controversy, but it did little to clarify the proper parameters of executive privilege. As a consequence, the OIC declared victory because it achieved access to testimony crucial to the investigation. The White House declared victory because the judge had upheld the principle of executive privilege. After then dropping its claim of executive privilege, the White House later asserted additional claims as the investigation moved forward (see Referral to the U.S. House of Representatives 1998).

In light of these events, there are competing interpretations of what needs to be done to clarify the meaning and application of executive privilege. …

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