Executive Privilege

Bob Woodward and Carl Bernstein came to UT today to speak about Watergate and its ongoing relevance. I requested the afternoon off to attend both sessions of their discussion, it was granted, and I showed up early (doors were at 1:30 for the 2:00 session, I was there shortly after 1:00). We just barely missed getting seats, and then they tried to display it on a large screen in the atrium, but the sound wasn't working. It was an all-around debacle for many more reasons than that, and in addition to the details that were mishandled, I would like to know who had the idea to schedule such a large event (which was also open to the public for free) at an auditorium that barely seats 200 people. Sigh. I'm told I'll be able to catch it on C-SPAN.

Anyways, here is something that would have been relevant, from Knowledge News:

Friends, President Bush and Congress are on a constitutional collision course. At issue: whether high-ranking White House aides should have to give congressional testimony--in public, on the record, and under oath--over the firings of eight United States attorneys.

The White House has offered to allow the aides to testify in private, off the record, and "without the need for an oath." Congressional Democrats say that's not good enough--and that they're ready to issue subpoenas to compel public testimony. President Bush says he'll fight any such subpoenas in court, claiming "executive privilege."

What's executive privilege? Basically, it's the right presidents and their executive-branch cohorts claim to keep certain information secret, even from Congress. The phrase doesn't appear in the U.S. Constitution. In fact, it wasn't commonly used until the 1950s. But the idea goes all the way back to George Washington--and to foundational arguments about the "separation of powers" in American government.

So, in pursuit of perspective, we'll look back at how presidents Washington and Jefferson staked claims to executive privilege. Then we'll turn to more recent times, when President Eisenhower faced down Joseph McCarthy, and President Nixon got caught on tape.


George Washington Wouldn't Jay-Walk

By the 1790s, tension between the newborn United States and Great Britain had escalated to the point that many leaders feared a return to war. So, in 1794, President Washington sent John Jay--first chief justice of the U.S. Supreme Court, co-author of The Federalist Papers, and all-around American patriot--on a mission to England. There, Jay negotiated a treaty, now called the Jay Treaty, that more or less resolved the key disputes.

That was the good news. The bad news was that Jay's treaty was highly unpopular on the home front--especially with the Jeffersonians, who portrayed it (and Jay) as a sellout to England. Despite Washington's support, crowds burned Jay in effigy and threw stones at treaty entreaters like Alexander Hamilton.

Eventually, the House of Representatives sent a request to President Washington for documents pertaining to the Jay Treaty negotiations. Setting precedent, Washington effectively told the House to take a hike. Reasoning that senators had a constitutional role to play in the ratification of treaties, Washington agreed to share the documents with them, but not with representatives in the House. Simply put, it was none of their constitutional business.

Thomas Jefferson Got Stuck on Burr

Thomas Jefferson followed Washington's lead during Aaron Burr's treason trial in 1807. Burr had been Jefferson's vice president from 1801 to 1805, but by 1807 he had fallen far from any kind of grace. After killing Alexander Hamilton in a duel in 1804, Burr had plotted with James Wilkinson to invade Mexico and launch a western empire all their own. Wilkinson ratted Burr out to Jefferson, and soon the former VP was on trial for treason.

During his trial, Burr asked the court to compel Jefferson to turn over private letters concerning Burr, one of which Burr claimed would exonerate him. Jefferson said that producing the documents might jeopardize public safety. And anyway, it wouldn't be right to disclose "a mixture of rumors, conjecture, and suspicions." Sound familiar? Those are pretty much the two main arguments for executive privilege today: the need to keep the nation secure, and the need to keep executive-branch officials speaking freely and frankly to each other, without worrying that what they say is "on the record."

Nevertheless, Chief Justice John Marshall (the founding father of judicial review in the United States) ruled that Burr's Sixth Amendment rights--particularly the right to compel witnesses to appear at his trial--trumped Jefferson's claim of privilege. What's more, Marshall ruled, the Supreme Court should say whether revealing such documents imperiled public safety, not the president himself.

In the end, Jefferson produced the documents, but he made a point of doing so "voluntarily"--that is, he turned the letters over without admitting that the Court had the authority Marshall claimed for it. Incidentally, Burr was exonerated: nothing treasonous to the United States about launching an ill-advised invasion of Mexico, even if you are the ex-vice president.

Ike Says "Not Gonna Do It"

President Eisenhower is hardly famous for activist policymaking, but when it comes to executive privilege, he played a crucial creative role. Previous administrations had generally assumed at least some form of executive-branch privilege. But the Eisenhower administration took this largely tacit prerogative and turned it into an explicit policy position. They called it "executive privilege," and they used it first and foremost to fight Senator Joseph McCarthy.

McCarthy and Eisenhower were both Republicans, but there was no love lost between them. Ike once reportedly told his aides that he would not "get into the gutter with this guy." Yet in 1954, he did. McCarthy had set out to expose communists in the U.S. Army, and Eisenhower--the old general--thought that went too far. So, his staff got down-and-dirty by revealing embarrassing information about McCarthy's efforts to obtain preferential treatment from the Army for an aide.

McCarthy struck back, demanding to see documents pertaining to meetings between the Eisenhower administration and Army officials. Eisenhower's response was unequivocal: "It is not in the public interest," he said, for the administration to disclose "any . . . conversations or communications, or any documents" concerning the ongoing business of the executive branch. To a group of Republican lawmakers, he put the point even more bluntly: "Any man who testifies as to the advice he gave me won't be working for me that night."

McCarthy never mounted a legal challenge against Eisenhower's claim--possibly because, by the end of 1954, the Senate was censuring him for unbecoming conduct. The Eisenhower administration, however, continued to insist upon its "executive privilege." They denied congressional requests more than 40 times between 1955 and 1960, setting a record for executive-privilege claims that stands today.

Nixon Gets Caught on Tape

If Eisenhower expanded executive privilege, his former vice president, Richard Nixon, nearly discredited it. As the Watergate scandal unfolded, President Nixon repeatedly employed executive privilege as a means to stonewall the Senate investigation. First, he claimed executive privilege to prevent aides from testifying. Later, he tried to use it to withhold tapes of White House conversations that would ultimately prove his undoing.

When Watergate special prosecutor Leon Jaworski demanded that Nixon turn those tapes over in 1974, the case went to the Supreme Court, and the Court made its most definitive statement on executive privilege ever. In a unanimous 8-0 decision (with Nixon-nominee William Rehnquist abstaining), the Court ruled against the president, but explicitly recognized the validity of the executive-privilege claim.

"The president's need for complete candor and objectivity from advisors calls for great deference from the courts," wrote Chief Justice Warren Burger. Indeed, "the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties . . . is too plain to require further discussion." Nevertheless, "neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, . . . can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances."

In this case, the Court ruled that the specific interests of criminal justice and due process simply outweighed the president's generalized claim to privilege. Nixon was forced to turn the tapes over. He resigned a few weeks later.

--Steve Sampson


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