Miller Center

Executive Privilege: Mapping an Extraordinary Power

Presidents as far back as George Washington have claimed executive privilege on some of their correspondence and conversations—especially those related to foreign policy and national security—on the grounds that a president must be able to receive candid advice from advisors and experts in order to govern appropriately. However, after President Nixon and Watergate, executive privilege has been viewed with increasing suspicion by both Congress and the public.

Claims of executive privilege introduce tension between the executive and legislative branches, and the judiciary—the Supreme Court most notably—has been reticent to step in and rule in favor of one or the other until the two have exhausted all other attempts at resolution. Is executive privilege a problem inherent to the separation of powers clause and lacking a clear-cut solution?

The Miller Center recently gathered scholars for an in-depth study of the issue and reviewed proposed solutions to it to determine if there was a viable means for resolution. This report, entitled Executive Privilege: Mapping an Extraordinary Power, was developed out of that event. It provides a well-rounded review of this contentious—but also extremely important—issue.

The Miller Center’s 1998 National Commission on the Separation of Powers was convened to conduct a methodical and scholarly survey of "gray areas" where the separation of powers was not clearly delineated. It included a study of executive privilege, and the commissioners recommended that “Congress reduce its demands on the Presidency concerning its internal deliberations, and that Presidents invoke executive privilege to resist unreasonably invasive demands from Congress.”  Click here to read that full report (specific reference to executive privilege can be found on page 5).

The online exhibit below profiles speeches, forums, and interviews that show the way that various presidents addressed the executive privilege issue.

George Washington

This is an excerpt from the essay, "Impact and Legacy: Creating the Presidency". Read the full essay here.

...Washington's reliance on department heads for advice, similar to his war council during the Revolution, set a precedent for including the cabinet as part of the President's office. Moreover, because Congress did not challenge his appointments or his removal of appointees, principally out of respect for him, the tradition was planted to allow the President to choose his or her own cabinet. By his actions and words, Washington also set the standard for two presidential terms, a practice that lasted until 1940. When John Jay resigned as chief justice of the Supreme Court, Washington selected his successor from outside the bench, disregarding seniority and thus allowing future Presidents to draw from a diverse pool of talent beyond the Court's aging incumbents.

When the House of Representatives sought records related to negotiations surrounding the Jay Treaty of 1795, Washington refused to deliver all the documents. In doing so, he set the precedent for invoking what became known as executive privilege. In leading federal troops against the Whiskey Rebellion, Washington presented a clear show of federal authority, established the principle that federal law is the supreme law of the land, and demonstrated that the federal government is empowered to levy and collect taxes.

Although he sponsored and supported legislative proposals submitted to Congress for enactment, he carefully avoided trying to dictate or unduly influence the judicial and legislative branches of the government. In not vetoing bills with which he disagreed unless there were constitutional questions, he set a precedent of executive restraint that would be followed by the next five Presidents. Moreover, by keeping Vice President Adams at arm's length—not even inviting him to attend cabinet meetings—Washington set the tradition by which the vice president's role is largely ceremonial. more →

Grover Cleveland

This is an excerpt from the essay, "Impact and Legacy: Creating the Presidency". Read the full essay here.

Although not a great President, Cleveland almost single-handedly restored and strengthened the power and autonomy of the executive branch. Notable in this regard was his use of executive privilege in refusing to hand over department files to Congress in the fight over presidential appointments. No President prior to Richard M. Nixon had ever made such an extreme assertion of executive privilege in peacetime. His record-breaking use of the presidential veto also enabled him to reestablish the equilibrium between the executive and legislative branches, another precedent-setting example of presidential power. Equally important, Cleveland laid claim to a strong presidency in ways that had lasting impact. His assertion of authority in calling out federal troops during the Pullman strike, sending warships to Panama, and threatening Britain with war over the Venezuelan boundary dispute set the tone for the modern energetic executive. Regarding social policy, Cleveland comes across as much more racially intolerant, and certainly when compared to Presidents such as Abraham Lincoln, Theodore Roosevelt, and Franklin Roosevelt. more →

Dwight D. Eisenhower

Forum: Executive Privilege and the Presidency

Mark Rozell, a preeminent scholar on the Presidency, gave a forum on the president's right to withhold information from the public.

In this clip, he quotes President Eisenhower as the first President to use the phrase "executive privilege," and notes the Wall Street Journal's support for the concept when it was introduced as such in 1954.

Richard M. Nixon

News Conference (February 25, 1974)

Excerpt:

Q: Mr. President, to heal the divisions in this country, would you be willing to waive executive privilege to give the Judiciary Committee what it says it needs to end any question of your involvement in Watergate? 

The President: Miss Thomas, as you know, the matter of the Judiciary Committee's investigation is now being discussed by White House Counsel, Mr. St. Clair, and Mr. Doar. And as I indicated in my State of the Union Address, I am prepared to cooperate with the committee in any way consistent with my constitutional responsibility to defend the Office of the Presidency against any action which would weaken that office and the ability of future Presidents to carry out the great responsibilities that any President will have.

Mr. Doar is conducting those negotiations with Mr. St. Clair, and whatever is eventually arranged, which will bring a prompt resolution of this matter, I will cooperate in.

Address to the Nation on Presidential Tape Recordings (April 29, 1974)

Excerpt:

Ever since the existence of the White House taping system was first made known last summer, I have tried vigorously to guard the privacy of the tapes. I have been well aware that my effort to protect the confidentiality of Presidential conversations has heightened the sense of mystery about Watergate and, in fact, has caused increased suspicions of the President. Many people assume that the tapes must incriminate the President, or that otherwise, he would not insist on their privacy. 

But the problem I confronted was this: Unless a President can protect the privacy of the advice he gets, he cannot get the advice he needs. 

This principle is recognized in the constitutional doctrine of executive privilege, which has been defended and maintained by every President since Washington and which has been recognized by the courts, whenever tested, as inherent in the Presidency. I consider it to be my constitutional responsibility to defend this principle. 

Three factors have now combined to persuade me that a major unprecedented exception to that principle is now necessary: 

First, in the present circumstances, the House of Representatives must be able to reach an informed judgment about the President's role in Watergate. 

Second, I am making a major exception to the principle of confidentiality because I believe such action is now necessary in order to restore the principle itself, by clearing the air of the central question that has brought such pressures upon it—and also to provide the evidence which will allow this matter to be brought to a prompt conclusion.

Third, in the context of the current impeachment climate, I believe all the American people, as well as their representatives in Congress, are entitled to have not only the facts but also the evidence that demonstrates those facts. 

I want there to be no question remaining about the fact that the President has nothing to hide in this matter. 

Ronald Reagan

Presidential Oral History Excerpt: Reagan Project Interview with White House Counsel Pete Wallison (part 1)

Listen:
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Excerpt:

Knott
You had an executive privilege battle, a brief one during the Rehnquist nomination. Could you just share some recollections about that? I think there were some differences of opinion—

Wallison
This was a case where—again, we talked earlier about the legal issues and the political issues and how you have to balance those two. Looking back at it, I don’t know why I felt so strongly about this, but when the Senate committee asked to see Rehnquist’s memoranda when he was head of the Office of Legal Counsel, it got my back up. I just had had enough.

It seemed to me that executive privilege is one thing, but attorney-client privilege in the government, from my experience with it, is pretty damned important, because when you ask for an opinion from the Office of Legal Counsel at the Justice Department—and I did this many times when I was at Treasury—you disclosed everything to the Justice Department. You disclosed—Here’s what the legislative history says. And, Here’s what Senator So-and-So said during the course of the debate and that really weakens our case. We think, for a variety of reasons, it should come out this way rather than another way. In other words, you’ve given them everything.

If they were ultimately to disclose that, it would weaken decisions that not only this President, but other Presidents, have made in the past about administrative decisions and regulations, and that sort of thing. Everything would be on the table again. Because then you’d have from the Counsel to the various departments, on paper, statements about how weak their position is on regulations that were currently being enforced. It’s a road map for people who want to challenge government regulations. I thought this was really going to be an awful precedent.

I talked to Chuck Cooper and we both agreed that this is where the President should claim executive privilege. Rehnquist’s memoranda when he was at the Justice Department shouldn’t be relevant. It was years and years before. He’d already been confirmed to be an Associate Justice. It couldn’t have anything to do with anything he’s doing right now, and it raises tremendous privilege questions—executive privilege questions. Attorney-client privilege is just a category of executive privilege. Chuck agreed.

This was one of the times when I went to see the President by myself. We talked it over and I gave him the arguments as I saw it, and he said, I agree.Okay, we decided to claim executive privilege. The Justice Department was continuing to try to negotiate with Congress and they worked out some kind of partial agreement, which I didn’t think was satisfactory.

Meese wanted to see the President and have him waive executive privilege in this case. I objected. Regan set up a meeting with Reagan between me and Meese to talk with Reagan about our differing views on the subject. We had a little debate in front of Reagan. Meese’s argument basically was, It’s just not that important. We need Rehnquist on the Supreme Court. My best information from the Hill is that if we don’t give the Hill this, this nomination is not going to get out of committee.

There were not only all the Democrats, but two or three Republicans who agreed. In fact, partisan politics is not always a good guide to how Senators will vote when you come to questions of disputes between the branches. The Congress, especially since it is in such a weak position relative to the President, really does stand up on its hind legs once in a while and say, No. As a coordinate branch we’re entitled to this. Two, three, or four Republicans on the Judiciary Committee in the Senate said they wanted this material and they went along with the Democrats. They might not have voted out the nomination, even though at that point Republicans still controlled the committee.

Reagan listened to these things, to these arguments, and he said, I think I’m going to go with Ed on this. He said it to me as though my feelings would be hurt. Peter, you’ve made really powerful arguments here—things like that—You did such a good job. But I think I’ll go with Ed. I remember thinking,Gee, I hope you never make a decision based on whether my, or anyone else’s, feelings are hurt, since you’re the President of the United States and this has got nothing to do with personal matters. I remember that thought ran through my head but I said, Oh, fine, okay. That was the end of that.

The President did waive executive privilege. There was some kind of agreement worked out with the Justice Department so that some people got to see these documents. Nothing turned out to be in the documents that was harmful to the Rehnquist nomination and it went through.

That was the only time that I recommended that the President claim executive privilege. In the Iran-Contra matter, I recommended just the opposite, that he not claim it, that he waive executive privilege and let everything out. That was based on my judgment of the man. It was early in the controversy. I had no idea if he’d actually done any of the things that were said to have been done. I didn’t even actually know where he was on all of these things. I’d never talked with him about it.

My theory was that this is not something you want to cover up. You don’t ever want the allegation made that you’re covering this up, because no matter what has happened here, it’s just a policy decision. So what? Maybe you made some kind of bonehead play here. Who cares? The real problem would be if it looks as though you’re covering up—that’s going to be much worse than if you’ve made a mistake or have done some dumb thing. I still believe that.

Presidential Oral History Excerpt: Reagan Project Interview with White House Counsel Pete Wallison (part 2)

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Excerpt:

Morrisroe
Can I ask one question, just building off Chris’s question, because it does come up quite frequently. People talk about the Counsel and if there is a tension between representing the interests of the President and the Presidency. Often times when it’s brought up it’s not in the context of a legal defense of the President and their actions, but in advising the President. Do you feel any special obligation to represent, or to forward the institutional prerogatives of the Presidency, say, for example, executive privilege, or other powers—to take any special interest in those, even when at times they may run against the immediate political interests of a President?

Wallison
That’s a really good question. Let’s go back to the executive privilege case that we talked about before, because that is where you have that controversy between the Presidency and the President. You might say that in that case, although it’s not on all fours, as the lawyers would say. In that case, I felt more strongly about the institutional interests of the Presidency than what would be good, not for Ronald Reagan’s interests, per se, but for Ronald Reagan’s desires, concerning the appointment of Rehnquist to be Chief Justice. That advanced Ronald Reagan’s agenda. That didn’t really constitute a conflict between the President and the Presidency, but it was a conflict between Ronald Reagan’s agenda and the Presidency’s agenda, if you will.
Thinking about it honestly now, I came down much more on the side of the Presidency’s agenda, than Ronald Reagan’s agenda. So there is that tension. I’m not sure it’s always uppermost in your mind when you’re thinking about—

Morrisroe
And it may not necessarily come into conflict, but oftentimes when there are questions of institutional power and prerogative, because the Counsel is in a unique position that they have a special other professional charge as an attorney—a charge as representing the institution that some of the other exclusively political, or policy advisors don’t necessarily possess—other kinds of considerations.

Wallison
Right. You posed a very interesting question and I think it’s always going to be there. But there’s absolutely no way really to resolve that. I think most Counsels are probably going to resolve it in favor of the President they’re working for. Of course, ultimately that’s what happened, because when Reagan considered it, Reagan thought it was much more important to get his agenda adopted. The Counsel will probably, ultimately, be forced into that position. There’s hardly ever a time that I can imagine where the Counsel would actually oppose the President’s desire to do something that the President honestly wants to do, even though it doesn’t work for the institution of the Presidency quite as well.

George W. Bush

Forum: Executive Privilege and the Presidency

Mark Rozell, a preeminent scholar on the Presidency, gave a forum on the president's right to withhold information from the public.

In this clip, he reflects on some of the controversy surrounding the Bush administration's take on executive privilege, which involved a significant expansion of its scope.

Jimmy Carter / Bill Clinton

Cutler Conference, 2006

In this clip, taken from a panel exploring the role of the White House Counsel in defending the presidency (from the Miller Center's 2006 Lloyd Cutler Conference), Nancy Kassup examines Lloyd Cutler's take on Executive Privilege.

Lloyd Cutler served as White House Council to both Jimmy Carter and Bill Clinton.