The Murky Waters of Executive Privilege

Article excerpt

Mired by the protracted investigation into possible presidential wrongdoing, President Clinton has signaled his intention to try to stop independent counsel Kenneth Starr from digging deeper into White House activities.

Mr. Clinton maintains that he has the right of executive privilege - a very controversial power - to stop Mr. Starr from compelling testimony from key White House aides and the president's attorneys.

Executive privilege is the right of presidents to withhold information about White House operations from those who have the power of inquiry. Executive privilege usually arises when Congress demands access to White House documents or orders testimony from presidential aides on sensitive matters. Although there is no mention of this power in the Constitution, all presidents have on occasion claimed secrecy needs and refused to turn over requested documents or stopped presidential aides from testifying. For most people, the very mention of executive privilege conjures up images of presidential abuses in the Nixon White House - in particular President Nixon's attempt to protect the infamous White House tapes. Before Nixon, all presidents exercised some form of executive privilege, and there was little doubt that they possessed that right. In fact, President Eisenhower exercised executive privilege at least 40 times - something worth keeping in mind as many of Clinton's critics claim that he is abusing that power by having exercised it perhaps as many as six times. President Nixon gave executive privilege a bad name. He claimed that he had the right to withhold information even when such information was central to a criminal investigation. He believed that every member of the executive branch of the government possessed that power and that the courts had no right to rule on the legitimacy of executive privilege claims. The Nixon legacy Nixon's arguments were, of course, unfounded, but his actions had the effect of making it difficult for his successors to properly exercise this power. Now whenever a president claims executive privilege, the immediate reaction is that he is engaging in a Nixonian coverup of wrongdoing. In the current heated environment, it is worth noting that not every claim of executive privilege means there is some devious presidential plot to conceal a crime. Presidents have secrecy needs. Historically and in court interpretations, presidents have successfully been able to claim executive privilege when they have shown (1) a national security need, or (2) that the public interest will benefit from protecting the privacy of White House discussions. …


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