Executive Privilege in the Lewinsky Scandal: Giving a Good Doctrine a Bad Name

Article excerpt

Executive privilege is the right of the president and high executive branch officers to withhold information from Congress, the courts, and ultimately the public. It is now a well-established constitutional power--one with a long-standing history in American government going back to the George Washington administration. Yet, for most people, the mere mention of executive privilege conjures up images of Watergate and President Richard Nixon's attempt to use that doctrine to obstruct justice.

It is therefore no surprise that the Clinton administration ignited a firestorm of controversy by signaling its intention to use executive privilege in the Monica Lewinsky investigation to shield the content of presidential and White House staff discussions from Independent Counsel Kenneth Starr. Media accounts made the most of the Nixon analogy, placing the White House in the difficult--but perhaps well-deserved--position of having to defend its use of this little understood presidential power.

At its core, the president's claim of executive privilege as to discussions he may have had with Deputy White House Counsel Bruce Lindsay, Deputy White House Chief of Staff John Podesta, and White House aide Sidney Blumenthal--and any of their discussions with First Lady Hillary Rodham Clinton--failed on two fronts. First, regarding allegations of obstruction of justice growing out of a sex scandal, the president cannot persuasively claim the protection of a shield designed to protect only communications about official government business. Second, a consistent policy thread runs throughout the historical development of executive privilege law--a thread that was absent from Clinton's claim. That is, from George Washington forward, it has been recognized that executive privilege should be invoked only where it would be in the public interest. Clinton's bid to protect White House conversations appeared to have more to do with saving his reputation than safeguarding the public weal.

Executive Privilege in History

Executive privilege is a controversial power in large part because it is never mentioned in the Constitution. In fact, the phrase "executive privilege" was not even coined until the Eisenhower administration.

Historic precedents and judicial interpretation clearly have validated the legitimacy of executive privilege. Presidents have secrecy needs, and few would suggest that the power of inquiry, whether wielded by prosecutors or Congress, is absolute. Any claim of executive privilege is open to challenge and, as with other governmental powers, it may be subject to a balancing test when weighed against demands for access to information.

There is a long history of disputes over presidential claims to secrecy. Indeed, every president since Washington has exercised some form of what we today call executive privilege. Over time, executive privilege became an accepted doctrine when appropriately applied to two circumstances: (1) national security and (2) protecting the privacy of White House deliberations when it is in the public interest to do so. In evaluating executive privilege in the Lewinsky investigation, it is worth briefly looking back at the first use of that power and how it revolved on a factor absent from Clinton's failed attempt--that withholding the information ultimately was in the public's interest.

In 1792, Congress requested from the Washington administration "public" information regarding the failure of a U.S. military expedition. Congress specifically requested White House records and testimony from presidential staff familiar with the event.(1)

Washington convened his Cabinet to discuss the possibility of withholding information requested by Congress. Thomas Jefferson recorded in his notes of the meeting that the Cabinet had all agreed that a president has a right to withhold information when it is in the public interest to do so.(2) While eventually Washington decided to cooperate with Congress, he had laid the groundwork for later presidents to claim executive privilege. …

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