Executive Privilege: Definition, History, and Controversy

Introduction

After Vietnam and Watergate, the issue of executive privilege had not registered much of a blip on the radar. However, the Enron scandal of the early 2000s gave Congress occasion to question the validity of the executive privilege argument. In January 2002, Comptroller General David Walker, head of the non-partisan Government Accounting Office, announced that he would sue Vice President Dick Cheney in order to obtain information about the National Energy Policy Development Group that Cheney had chaired. Walker contended that the unprecedented lawsuit was made necessary by Cheney's refusal to cooperate voluntarily.

President George W. Bush had not claimed an "executive privilege" in connection with the GAO's information requests. However, it was likely that the Administration would assert such a privilege as the case proceeded. That was certainly the tenor of public statements by the Vice President and the White House. According to the Administration, the GAO is an arm of Congress and, accordingly, its efforts to uncover the inner workings of the Executive Branch violate the constitutional principle of separation of powers.

This paper analyzes and examines the multitude of issues related to executive privilege at the federal level. Part II examines the definition and applicability of executive privilege as seen by both the executive and legislative branches. In Part III, past and present controversial uses of executive privilege — in cases such as Enron and Watergate — are outlined. The paper concludes with recommendations for improving the use of executive privilege.

Definition and Applicability of Executive Privilege

Executive privilege is a concept that gives the chief executive — the President of the United States — the right to act outside of normal channels and, in some respects, outside of (though not above) the law. The United States Constitution does not explicitly mention executive privilege. However, presidents have long claimed that the constitutional principle of separation of powers implies that the Executive Branch has a privilege to resist certain encroachments by Congress and the judiciary, including some requests for information.

In 1796, President George Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the Jay Treaty with England (Dorf). According to Washington, the Senate alone plays a role in the ratification of treaties, which meant that the House had no legitimate claim to the material (Dorf). Washington provided the documents to the Senate but not to the House (Dorf).

In 1807, the issue of executive privilege arose in court. Aaron Burr was being tried for treason and asked the court to issue a subpoena duces tecum — an order requiring the production of documents and other tangible items — against President Thomas Jefferson, who was thought to have in his possession a letter exonerating Burr (Dorf). After hearing several days of argument, Chief Justice John Marshall issued the order commanding Jefferson to produce the letter (Dorf). Marshall observed that neither the Sixth Amendment right of an accused to compulsory process nor the law of evidence contains an exception for the President (Dorf). In response to the government's suggestion that disclosure of the letter would endanger public safety, Marshall concluded that, if true, this claim could furnish a reason for withholding it, but that the court — rather than the Executive Branch alone — was entitled to make that public safety determination after examining the letter (Dorf).

Jefferson complied with Marshall's order, but continued to deny the authority of the court to issue it, insisting that his compliance was voluntary (Dorf). That pattern persists today, as witnessed by the fact that President Bill Clinton negotiated the terms under which he appeared before Independent Counsel Kenneth Starr's grand jury, rather than simply answering a subpoena directing him to appear (Dorf).

Presidents often assert executive privilege even when the information or documents sought are not matters of national security (Dorf). The reasoning behind such an assertion is that some degree of confidentiality is necessary for the Executive Branch to function effectively (Dorf). Key advisers will hesitate to speak frankly if they must worry that what they say will eventually become a matter of public record (Dorf).

Past and Present Controversial Use of Executive Privilege

The Supreme Court considered this argument in the landmark 1974 case of United States v. Nixon. A grand jury convened by Watergate special prosecutor Leon Jaworski issued a subpoena to President Richard Nixon requiring him to produce Oval Office tapes and various written records relevant to the criminal case against members of Nixon's Administration (Dorf). Nixon resisted on grounds of executive privilege (Dorf).

According to the Court, there is a "valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties" (Dorf). The Court noted that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process" (Dorf).

Nonetheless, the Justices concluded that executive privilege is not absolute (Dorf). Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution (Dorf). Two weeks after the Court ordered President Nixon to divulge the tapes and records, Nixon complied (Dorf). Four days later, Nixon resigned in one of the greatest political scandals in American history (Dorf).

Invoking executive privilege, Vice President Dick Cheney refused to disclose details of meetings he had held with Enron officials (Amar). Should Congress ultimately decide to press the issue, Cheney would be wise to yield. One of Cheney's primary concerns was that United States v. Nixon and subsequent lower court opinions had eroded executive privilege (Amar). In a system of separated powers, each branch must have some internal space — a separate house, so to speak — to deliberate free from the intermeddling of other branches (Amar). Senators must be free to speak candidly with colleagues and staff in cloakrooms; judges need similar freedom to converse with one another in judicial conferences and with clerks in closed chambers; jurors deliberate in secret; and for similar reasons, presidents need room for confidential conversations with staff (Amar).

Cheney's situation raised unique complications (Amar). He was neither the President nor a cabinet or subcabinet official wholly within the executive branch (Amar). Constitutionally, he was also an officer of the legislature — the Senate's presiding officer (Amar). The Enron officials present at those meetings were themselves not governmental officers of any sort (Amar). Nor was the topic a purely executive matter such as an appointment, prosecution, or pardon; rather, it concerned what legislation to propose to Congress (Amar).

It is a stretch to argue that Enron officials themselves could assert executive privilege (Amar). Since Enron itself could be directly subpoenaed, it logically follows that Cheney could be likewise subpoenaed to provide the same information (Amar). When a client talks to her lawyers with others present in the room, she is generally deemed to have waived attorney-client privilege; similarly, when penitents speak to priests outside the confessional seal, that protection is lost (Amar). By similar logic, executive privilege is waived — or at least weakened — when executive officials meet with outside parties (Amar).

Conclusion

The pendulum of power in the government swings back and forth between Congress and the president. As a consequence of the Vietnam War and Watergate, it swung far toward Congress. In the past thirty years, it has swung at least part way back. Where it goes from this point forward remains in play.