Executive Privilege in the Reagan Administration: Diluting a Constitutional Doctrine

Article excerpt

To its defenders, the Reagan administration brought about a revival of effective presidential leadership after a sequence of "failed" presidencies. According to this view, Reagan refuted the political science theories of the "impeniled" presidency and he restored workable, active leadership to the executive branch.(1)

Contrast that view with the accusations of Reagan' s critics who maintain that his administration abused power and sacrificed substantive accomplishment for the linage of leadership. From this perspective, Reagan's notion of leadership is one in which little credence is given to the legitimate interests of the coordinate governmental branches or of private citizens.(2)

Central to this debate over the Reagan legacy is the controversy over executive branch secrecy. Reagan's leadership differed substantially on issues of government secrecy from the "open" presidencies of Gerald Ford and Jimmy Carter. To be sure, Ford and Carter mistakenly assumed after the Watergate scandal that a policy of openness best suited the demands of presidential leadership. Reagan perhaps better understood that information control, not openness, enhances presidential power.

This article examines one form of information control in the Reagan administration: executive privilege. Under the doctrine of executive privilege, the president and important executive branch officers have the right to withhold information from Congress, the courts, and, ultimately, the public. Executive privilege is not an unfettered, absolute power.(3) It can be invoked only under the most compelling circumstances for example, when disclosure of information threatens the national security, undermines confidential deliberations, exposes criminal investigations, or leads to public embarrassment for no public gain.

Nonetheless, this presidential power has been abused. The most egregious abuses of executive privilege occurred under President Nixon who invoked that doctrine to shield embarrassing and incriminating information. Nixon claimed national security concerns when, in fact, he was trying to cover up administration abuses of power.(4)

Because of the incredible abuses of one administration, a historically widely accepted constitutional doctrine has fallen into disrepute. Although presidents for years had withheld information, Congress had agreed that such a power could be invoked, and the courts recognized such a power as constitutional, a modem president cannot invoke executive privilege without being immediately accused of a Nixonian attempt to conceal or to deceive.

The Reagan administration provides telling commentary on the modern status of executive privilege. Reagan--accused by many critics of being overly prone to secrecy and deception--showed great reluctance to fully exercise the executive privilege. When his administration invoked the privilege, it eventually backed down in the face of congressional citations for contempt and threats to delay confirmation proceedings. So unsure of his own authority in this area, Reagan-who had championed proposals for unprecedented strict classification, cumbersome impediments on Freedom of Information Act requests, lie-detector tests for potential leakers, lifetime censorship for over 100,000 current and former government employees, and numerous other forms of information control--waived executive privilege for all administration officials called to testify at the Iran-Contra hearings and refused advice to assert the privilege over his own personal diaries.

The Reagan administration experiences reveal the following about executive privilege. First, it does not have the support necessary to stand up to congressional demands for full disclosure of information. A legitimate, often necessary presidential power is yet another victim of the post-Watergate trend toward greater impediments on the chief executive's authority. Second, Congress clearly has the means by which to compel executive disclosure of information. …