It's All Politics
3:35 pm
Wed June 20, 2012

Executive Privilege: A Long (And Sometimes Sordid) History

Originally published on Wed June 20, 2012 4:09 pm

First, a bit of word association: I say executive privilege. You say (probably) either Watergate or Nixon.

And therein lies the problem for President Obama, who decided Wednesday to use the privilege to prevent Congress from obtaining internal Justice Department documents. Deservedly or not, for any president since Nixon, invoking executive privilege seems to carry a whiff of scandal about it.

The White House decision came just ahead of a vote by a House committee on whether to hold Attorney General Eric Holder in contempt for failing to turn over papers related to the Justice Department's botched Mexican gun-smuggling sting known as Operation Fast and Furious.

What exactly is executive privilege? Don't go rushing to your copy of the Constitution for the answer. It's not there. But it's nonetheless crucial to the balance of powers; the practice allows the president under many circumstances to refuse to release internal documents and communications.

The origins of the presidential claim go back to nearly the beginning of the republic, says Michael Dorf, a professor who specializes in constitutional law at Cornell University.

President Thomas Jefferson used his office as a rationale for declining to testify in the conspiracy trial of his vice president, Aaron Burr, who was accused of plotting a revolution in the American heartland. (Burr was later acquitted).

"That was a privilege against being compelled to testify, but it's all part of the same constellation of claims that presidents have made that in virtue of the separation of powers they are entitled to certain protections from the processes or the courts that ordinary people are not entitled to," Dorf says.

But it wasn't until Richard Nixon asserted executive privilege to prevent the release of the Watergate tapes that the notion was formally tested in the Supreme Court.

In 1974, a decision in United States v. Nixon spelled out the privilege. The Supreme Court said that the president enjoys a general protection against disclosure of his own discussions with close advisers. But the high court also said this "generalized interest in confidentiality" can be trumped by a need for evidence that is "demonstrably relevant" to a criminal trial, except in cases of national security.

"The reason is really intuitive," says Steven Schwinn, a professor at John Marshall Law School in Chicago. "If the president couldn't assert that kind of privilege over that kind of communication, then high-level officials and the president could never be assured that they were getting full and frank advice, because there would be fears that that advice could come out."

Wednesday's White House announcement marked the first use of executive privilege by President Obama, and administration officials were quick to point out that President Clinton used it 14 times and President Bush six times.

In 1998, a federal judge ruled that Clinton could not use the privilege to prevent his aides from being compelled to testify in the Monica Lewinsky case. He was the first president since Nixon to lose on the issue in court.

So, what does that all mean for President Obama and the Fast and Furious documents?

Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee that is seeking the documents, said the president's assertion of executive privilege "falls short" of any reason to delay a contempt hearing against the attorney general.

"The problem here is that the need for the information is substantially less than it was in the Nixon case," says Schwinn, the Chicago professor. "This is just a congressional investigation; there is no criminal trial at stake and there are no constitutional issues."

"Constitutionally speaking, this weighs in favor of executive privilege, and history has borne that out," he says. "Whenever a president has invoked executive privilege in a case like this with Congress, the parties have worked it out."

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