Presidents and the Law: Executive Privilege
In the law of evidence, privilege means a right not to be compelled to give or produce certain evidence or answer certain questions or obey the commands of a subpoena. (That's probably not the neatest definition, but let's go with that for now.) For example, as a general rule, lawyers and their clients are not required to give evidence about their discussions because of lawyer-client privilege (or solictor-client privilege as it's known in Commonwealth countries.) Executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist subpoenas and other interventions by the legislative and judicial branches of government to access information from witnesses connected to the executive branch. The concept of executive privilege is not set out explicitly in the Constitution, but the Supreme Court of the United States has held that it is part of the separation of powers between the branches of government. As discussed in an earlier post in this series, the Supreme Court ruled in United States v. Nixon, that this is not an absolute right.
In 1796, in what was probably the first exercise of executive privilege by a President, George Washington refused to comply with a request by the House of Representatives to produce documents relating to the negotiation of the Jay Treaty with Great Britain. His reasoning was that since the Senate alone has the power to ratify treaties, the House had no legitimate claim to the material. Washington provided the documents to the Senate but not to the House.
President Thomas Jefferson relied on this precedent during the trial of Aaron Burr for treason in 1807 (discussed earlier in this series here). Burr asked the court to issue a subpoena to require Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president, would be the judge of that. Jefferson never turned over the requested materials however, and his non-compliance with the subpoena was never addressed.
In 1833, President Andrew Jackson relied on executive privilege to refuse a demand from Senator Henry Clay for Jackson to produce documents concerning statements the president made to his cabinet about the removal of federal deposits from the Second Bank of the United States during the Bank War.
During the Truman administration, Congress investigated a number of security breaches, which included the famous Alger Hiss and Whittaker Chambers case of 1948. The Truman Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems. Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters.
During the McCarthy hearings in 1954, President Dwight Eisenhower claimed executive privilege to forbid the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Department of Defense employees were also instructed not to testify on any such conversations or produce any such documents or reproductions. This was done to refuse the McCarthy Committee subpoenas of transcripts of monitored telephone calls from Army officials, as well as information on meetings between Eisenhower officials relating to the hearings. Eisenhower's reasoning was that there was a need for "candid" discussions among executive employees in giving advice to one another. Eisenhower claimed such privilege 44 times between 1955 and 1960.
In United States v. Nixon, a 1974 case, a demand was made by Watergate special prosecutor Archibald Cox that President Richard Nixon produce the audiotapes of conversations he and his colleagues had in the Oval Office of the White House in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records. The Supreme Court did not reject the claim of privilege entirely. It recognized the need for protection of communications between high Government officials and those who advise and assist them in the performance of their duties. The court said:
"To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III."
The Court found that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence. Nixon was required to comply with the subpoena.
The Clinton administration invoked executive privilege 14 times. In 1998, President Bill Clinton asserted executive privilege when a Federal judge ruled that Clinton aides could be called to testify in the Lewinsky scandal. Later, Clinton exercised a form of negotiated executive privilege when he agreed to testify before the grand jury called by Independent Counsel Kenneth Starr only after negotiating the terms under which he would appear.
The administration of President George W. Bush invoked executive privilege on 6 occasions. President Bush first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno, the scandal involving FBI misuse of organized-crime informants James J. Bulger and Stephen Flemmi in Boston, and Justice Department deliberations about President Bill Clinton's fundraising tactics, in December 2001.
Bush also invoked executive privilege in refusing to disclose the details of Vice President Dick Cheney's meetings with energy executives. On June 28, 2007, Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel Harriet Miers and former political director Sara Taylor. Bush said "For the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch."
On July 9, 2007, Bush invoked executive privilege to block a congressional subpoena requiring the testimonies of Taylor and Miers. Furthermore, White House Counsel Fred F. Fielding refused to comply with a deadline set by the chairman of the Senate Judiciary Committee to explain its privilege claim, prove that the president personally invoked it, and provide logs of which documents were being withheld. On July 25, 2007, the House Judiciary Committee voted to cite Miers and White House Chief of Staff Joshua Bolten for contempt of Congress.
On July 13, less than a week later, Bush claimed the privilege once again, this time in relation to documents related to the 2004 death of Army Ranger Pat Tillman. In a letter to the House Committee on Oversight and Government Reform, Fielding claimed certain papers relating to discussion of the friendly-fire shooting “implicate Executive Branch confidentiality interests” and would therefore not be turned over to the committee.
On August 1, 2007, Bush invoked the privilege for the fourth time in little over a month, this time rejecting a subpoena for Karl Rove. The subpoena would have required the President's Senior Advisor to testify before the Senate Judiciary Committee in a probe over fired federal prosecutors. In a letter to Senate Judiciary Chairman Patrick Leahy, Fielding claimed that "Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity." Leahy claimed that that the president's executive privilege claims protecting Josh Bolten, and Karl Rove was illegal and he demanded that Bolten, Rove, Sara Taylor, and J. Scott Jennings comply "immediately" with their subpoenas. The demand was not met.
On June 20, 2012, President Barack Obama asserted executive privilege for the first time, to withhold certain Department of Justice documents related to the "Operation Fast and Furious" controversy. A United States House Committee on Oversight and Government Reform had voted to hold Attorney General Eric Holder in Contempt of Congress for refusing to produce the documents. Later the same day, the United States House Committee on Oversight and Government Reform voted 23-17 along party lines to hold Attorney General Holder in contempt of Congress over not releasing documents regarding Fast and Furious. President Obama declined to prosecute its own attorney general on the Contempt of Congress charge, citing executive privilege.
In September 2012, after a nineteen month review, the United States Department of Justice Office of the Inspector General cleared the Attorney General of any other wrongdoing with regard to Fast and Furious, stating that there was "no evidence" that Holder knew about the operation before early 2011.
In 1796, in what was probably the first exercise of executive privilege by a President, George Washington refused to comply with a request by the House of Representatives to produce documents relating to the negotiation of the Jay Treaty with Great Britain. His reasoning was that since the Senate alone has the power to ratify treaties, the House had no legitimate claim to the material. Washington provided the documents to the Senate but not to the House.
President Thomas Jefferson relied on this precedent during the trial of Aaron Burr for treason in 1807 (discussed earlier in this series here). Burr asked the court to issue a subpoena to require Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president, would be the judge of that. Jefferson never turned over the requested materials however, and his non-compliance with the subpoena was never addressed.
In 1833, President Andrew Jackson relied on executive privilege to refuse a demand from Senator Henry Clay for Jackson to produce documents concerning statements the president made to his cabinet about the removal of federal deposits from the Second Bank of the United States during the Bank War.
During the Truman administration, Congress investigated a number of security breaches, which included the famous Alger Hiss and Whittaker Chambers case of 1948. The Truman Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems. Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters.
During the McCarthy hearings in 1954, President Dwight Eisenhower claimed executive privilege to forbid the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Department of Defense employees were also instructed not to testify on any such conversations or produce any such documents or reproductions. This was done to refuse the McCarthy Committee subpoenas of transcripts of monitored telephone calls from Army officials, as well as information on meetings between Eisenhower officials relating to the hearings. Eisenhower's reasoning was that there was a need for "candid" discussions among executive employees in giving advice to one another. Eisenhower claimed such privilege 44 times between 1955 and 1960.
In United States v. Nixon, a 1974 case, a demand was made by Watergate special prosecutor Archibald Cox that President Richard Nixon produce the audiotapes of conversations he and his colleagues had in the Oval Office of the White House in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records. The Supreme Court did not reject the claim of privilege entirely. It recognized the need for protection of communications between high Government officials and those who advise and assist them in the performance of their duties. The court said:
"To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III."
The Court found that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence. Nixon was required to comply with the subpoena.
The Clinton administration invoked executive privilege 14 times. In 1998, President Bill Clinton asserted executive privilege when a Federal judge ruled that Clinton aides could be called to testify in the Lewinsky scandal. Later, Clinton exercised a form of negotiated executive privilege when he agreed to testify before the grand jury called by Independent Counsel Kenneth Starr only after negotiating the terms under which he would appear.
The administration of President George W. Bush invoked executive privilege on 6 occasions. President Bush first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno, the scandal involving FBI misuse of organized-crime informants James J. Bulger and Stephen Flemmi in Boston, and Justice Department deliberations about President Bill Clinton's fundraising tactics, in December 2001.
Bush also invoked executive privilege in refusing to disclose the details of Vice President Dick Cheney's meetings with energy executives. On June 28, 2007, Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel Harriet Miers and former political director Sara Taylor. Bush said "For the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch."
On July 9, 2007, Bush invoked executive privilege to block a congressional subpoena requiring the testimonies of Taylor and Miers. Furthermore, White House Counsel Fred F. Fielding refused to comply with a deadline set by the chairman of the Senate Judiciary Committee to explain its privilege claim, prove that the president personally invoked it, and provide logs of which documents were being withheld. On July 25, 2007, the House Judiciary Committee voted to cite Miers and White House Chief of Staff Joshua Bolten for contempt of Congress.
On July 13, less than a week later, Bush claimed the privilege once again, this time in relation to documents related to the 2004 death of Army Ranger Pat Tillman. In a letter to the House Committee on Oversight and Government Reform, Fielding claimed certain papers relating to discussion of the friendly-fire shooting “implicate Executive Branch confidentiality interests” and would therefore not be turned over to the committee.
On August 1, 2007, Bush invoked the privilege for the fourth time in little over a month, this time rejecting a subpoena for Karl Rove. The subpoena would have required the President's Senior Advisor to testify before the Senate Judiciary Committee in a probe over fired federal prosecutors. In a letter to Senate Judiciary Chairman Patrick Leahy, Fielding claimed that "Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity." Leahy claimed that that the president's executive privilege claims protecting Josh Bolten, and Karl Rove was illegal and he demanded that Bolten, Rove, Sara Taylor, and J. Scott Jennings comply "immediately" with their subpoenas. The demand was not met.
On June 20, 2012, President Barack Obama asserted executive privilege for the first time, to withhold certain Department of Justice documents related to the "Operation Fast and Furious" controversy. A United States House Committee on Oversight and Government Reform had voted to hold Attorney General Eric Holder in Contempt of Congress for refusing to produce the documents. Later the same day, the United States House Committee on Oversight and Government Reform voted 23-17 along party lines to hold Attorney General Holder in contempt of Congress over not releasing documents regarding Fast and Furious. President Obama declined to prosecute its own attorney general on the Contempt of Congress charge, citing executive privilege.
In September 2012, after a nineteen month review, the United States Department of Justice Office of the Inspector General cleared the Attorney General of any other wrongdoing with regard to Fast and Furious, stating that there was "no evidence" that Holder knew about the operation before early 2011.