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Executive Privilege (Right or Ruse)?

By James L. Hirsen, J.D., Ph.D.

Late last week, President Clinton predictably indicated that the White House was once again considering invoking the doctrine of executive privilege to keep key figures from appearing or testifying before the grand jury.

Executive privilege is the claim made by members of the executive branch of the U.S. government to immunity from congressional investigation and judicial procedures. The privilege originates from the constitutional principle of separation of powers.

The first time the term "executive privilege" was used occurred in 1954 when Senator Joseph McCarthy was investigating the administration of President Dwight Eisenhower. McCarthy had planned to subpoena Eisenhower's chief of staff. Eisenhower told his advisers that Congress had no right to ask White House personnel to testify in any manner concerning conversations with the President "at any time on any subject." The issue was never legally challenged because McCarthy abandoned the investigation.

The doctrine reached its high watermark when Eisenhower's vice president, Richard Nixon, became president.
President Nixon battled fiercely with a Senate committee and with the special prosecutor who was investigating the Watergate scandal. Nixon refused to allow White House Counsel John Dean to testify when summoned by a Senate committee. Eventually, Nixon capitulated saying that executive privilege would not be invoked to prevent aides from testifying to the Senate Watergate committee.

In 1974, the Watergate special prosecutor demanded that President Nixon turn over Oval Office tape recordings of conversations. The Nixon tapes were to be evidence in a prosecution on charges of conspiracy to obstruct justice. Nixon refused to give up the tape recordings, and his lawyers went to court citing executive privilege as his shield.

The Supreme Court said in a unanimous decision that Nixon had no absolute privilege to withhold evidence needed in a criminal prosecution. The Court characterized executive privilege as a "qualified privilege," that is, one that is enforced in limited cases depending on the circumstances. The doctrine of executive privilege survived, but Nixon's presidency was over.

In observing the current administration, it is disturbingly apparent that President Clinton's lawyers have liberally employed executive privilege as a delaying tactic.

In 1996, executive privilege was invoked as the basis for refusing to turn over 2,000 documents to the House Government Reform and Oversight Committee as part of the investigation of the Filegate scandal.

During the campaign of that same year, the Clinton administration invoked executive privilege to prevent Congress from obtaining a memo written by the FBI Director and Drug Enforcement Administration Chief in which Clinton was criticized for failing to effectively deal with illicit drug use and narcotics smuggling.

In June of 1997, the Clinton administration engaged in an executive privilege battle with Independent Counsel Donald Smaltz, who was investigating former Agriculture Secretary Mike Espy. Smaltz sought 84 documents that had been withheld by the Clinton administration. The documents pertained to Espy's acceptance of bribes.

In resolving the controversy, the assertion of executive privilege was upheld in a limited way by the Federal Court of Appeals. The Court ordered a reexamination of the 84 documents to release only those that contained information relevant to Smaltz's investigation of Espy.

By subpoenaing presidential advisers, Independent Counsel Kenneth Starr would like to gain insight into the discussions of the innermost circle of the President's closest associates.

It is not surprising, therefore, that executive privilege would be a topic of media discussion. However, it is doubtful that the White House can succeed with a broad executive privilege claim that seeks to completely shield officials from testifying before a grand jury.

Nevertheless, a more limited claim that seeks to block questioning in certain areas could place the burden on Starr to show why the information is vital to his probe. The court would have to separate conversations between the President and his aides concerning matters of national security, military operations or diplomatic secrets from those that are merely general presidential deliberations. In initiating such a determination, the President could purchase an item he seems to crave far more than truth(that precious commodity of time. It would take months to resolve executive privilege issues even if the White House invokes it in a limited fashion.

In actuality, issues involved in the current scandal bear no relationship to the national security concerns that justify executive privilege. Use of this exemption would simply be another tactic in the arsenal of stonewall strategies in which the White House has engaged to avoid answering questions. If the President decides to employ this approach, he will have succeeded in sullying yet another aspect of a once revered institution-the office of the presidency.

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James L. Hirsen, J.D., Ph.D.

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