The Watergate crisis brought the doctrine of executive privilege--the right of the president to withhold information from the coordinate branches of government and ultimately the public--to the forefront of political discourse in the United States. Although presidents for years had exercised some form of that controversial power, no event ever had such an impact on the status and practice of executive privilege.
President Richard M. Nixon's extreme claims of executive privilege--based on his unsupported view that executive privilege is an unfettered presidential prerogative--had the effect of bringing discredit to that doctrine.(1) In the post-Watergate years, Congress became vigilant in its efforts to challenge presidential claims of executive privilege through the use of public hearings to influence public opinion, the subpoena power, contempt of Congress citations, and litigation. When it comes to executive privilege, the post-Watergate presidents have had to operate in the shadow of Nixon.
This article explores the use of executive privilege in the Jimmy Carter administration. Through an examination of Carter White House documents, the strategy of this "open" presidency to manage executive privilege disputes is identified and analyzed.
Although Jimmy Carter successfully sought the presidency in 1976 as a candidate committed to open government and fundamental change from the Nixon era, as president he never rejected the right of executive privilege. Nonetheless, Carter did not make much use of that constitutional power, even when circumstances appeared to justify such action. Carter never issued any formal policy on his administration's use of executive privilege. He avoided personally responding to congressional inquiries on the subject. When his administration sought to withhold information, it usually did so without raising executive privilege as a constitutional basis for such action. Understanding the negative connotations of executive privilege and the temper of the times, Carter crafted a strategy of withholding information while avoiding, to the extent possible, getting involved in any executive privilege controversy. This strategy worked to deflect controversy on a sensitive issue, but it caused a great deal of internal administration confusion over what to do when access to information disputes arose.
Carter's response to executive privilege is very similar, in fact, to President Gerald R. Ford's efforts to avoid controversy over that doctrine.(2) The thirty-ninth president often avoided the phrase "executive privilege" and his administration generally couched decisions to withhold information in terms of "separation of powers" or the need to protect "free and open" exchanges within the White House. Clearly, Carter's advisers understood that, because of his promise to run an "open" presidency, the use of executive privilege would result in substantial criticism of the administration.
An examination of the Carter administration's handling of executive privilege makes clear just how controversial this constitutional doctrine had become as a result of Watergate. During Carter's tenure Congress displayed an aggressive posture toward gaining access to executive branch information. This article shows how the Carter White House tried to protect confidentiality, not break the pledge of an "open" presidency, and satisfy congressional demands for information at the same time.
Carter's "Policy" on Executive Privilege
Although most presidents have defended a constitutional right to withhold information on occasion, it was not until the Eisenhower administration that the phrase "executive privilege" had actually been used. Eisenhower's administration invoked executive privilege on forty occasions. What made executive privilege so controversial during the Eisenhower years was the fact that this doctrine was being cited not only by the president, but by cabinet officers and lower-level executive branch officers--oftentimes without presidential approval or knowledge. …