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[Image: Nixon, Eisenhower] President Dwight Eisenhower,
right, issued a sweeping
definition of executive
privilege in 1954; 20 years
later, Richard Nixon, left,
Ike's vice president, was
president and invoked the
same doctrine to block the
Watergate investigation.
�Executive privilege�
again at issue
Nixon invoked doctrine
to shield Watergate tapes;
now Clinton may use it
By Tom Curry
MSNBC
How can the president of the United States negotiate
treaties if his conversations are not confidential? How can
a prosecutor investigate reports of law-breaking if the
president or his aides have crucial evidence and won�t hand
it over? This is the clash the Supreme Court tried to
resolve in United States vs. Nixon in 1974. President
Clinton could find himself in a similar struggle if he
invokes executive privilege in the Monica Lewinsky case.
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�What public THE DOCTRINE of executive privilege
interest is there holds that the president and other executive
in preserving branch officials can withhold sensitive
secrecy with information and documents from Congress and
respect to a from prying prosecutors.
criminal If, for instance, memoranda of
conspiracy?� conversations the president had with the
� SUPREME COURT defense secretary could later be subpoenaed
JUSTICE LEWIS as evidence in a court case, the president
POWELL would not be able to hear candid advice and
oral argument in would be unable to plan military action
U.S. v. Nixon, against Iraq.
1974 In 1974, Watergate special prosecutor
Leon Jaworski demanded that President Richard
Nixon turn over his tape recordings of Oval
Office conversations. Jaworski needed Nixon�s
tapes as evidence in his prosecution of John
Mitchell, H.R. Haldeman and five other Nixon
associates on charges of conspiracy to
obstruct justice.
Jaworski was willing to have trial
judge John Sirica listen to the tapes in his
chambers (in camera) to protect the
president�s need for confidentiality.
Nixon�s lawyers went to court to stop
Jaworski, claiming that the tapes were
protected by executive privilege.
UNANIMOUS 1974 RULING
In an 8-0 unanimous decision (with
Justice William Rehnquist recusing himself),
the Supreme Court declared that �the
president�s need for complete candor and
objectivity from advisers calls for great
deference from the courts.�
�The president�s But the court said the president had
need for complete no absolute privilege to withhold evidence
candor and needed in a criminal prosecution.
objectivity from The eight justices said that without
advisors calls �a claim of the need to protect military,
for great diplomatic or sensitive national security
deference from secrets, we find it difficult to accept the
the courts.� argument that even the very important
� U.S. SUPREME interest in confidentiality of presidential
COURT communications is significantly diminished by
United States vs. production of such material for in camera
Nixon, 1974 inspection.�
Since Nixon was not claiming that
military or diplomatic secrets were at stake,
he lost. The court told him to turn over the
tapes.
U.S. District Judge Norma Holloway
Johnson, who supervises the grand jury
investigating possible obstruction of justice
in the Monica Lewinsky matter, may have to
grapple with claims of executive privilege.
CLINTON TRACK RECORD
If Clinton�s lawyers do invoke
executive privilege, it won�t be the first
time they�ve done so in his presidency.
In 1996, Jack Quinn, then the
president�s counsel, cited executive
privilege as the basis for refusing to turn
over to the House Government Reform and
Oversight Committee 2,000 documents the panel
had demanded as part of its investigation of
the �Filegate� furor.
Officials at the White House had
gotten confidential FBI files on Billy Dale,
former head of the White House travel office,
whom Clinton fired in 1993, and on several
prominent Republicans.
Later that year, the Clinton
administration invoked executive privilege to
stop Congress from obtaining a memo written
by FBI Director Louis Freeh and Drug
Enforcement Administration chief Thomas
Constantine in which the two men reportedly
criticized Clinton for failing to lead
vigorously in the war on illicit drug use and
narcotics smuggling.
COURT EXPANDS PRIVILEGE
Last June, the Clinton administration
� and future presidents who might want to use
executive privilege � won a victory in
federal appeals court in Washington.
The court ruled that even
conversations among presidential advisers
that do not involve the president are
protected by executive privilege.
Judge Patricia Wald wrote that
�presidential advisers do not explore
alternatives only in conversations with the
president or pull their final advice out of
thin air. ... Rather, the most valuable
advisers will investigate the factual context
of a problem in detail, obtain input from all
others with significant expertise in the
area, and perform detailed analyses of
several different policy options.�
If the president aides can�t meet,
swap ideas and circulate memos, Wald wrote,
�the president�s access to candid and
informed advice could well be significantly
circumscribed.�
Wald�s ruling, joined in by two other
federal appeals court judges, came in a
protracted battle between the White House and
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 an internal White
House investigation of Espy�s accepting gifts
from Tyson Foods, Quaker Oats, Smith Barney
and other firms.
Wald ordered a federal trial judge to
re-examine the 84 documents and release those
that contained �any information that might
reasonably be relevant� to Smaltz�s
investigation of Espy.
BIRTH OF EXECUTIVE PRIVILEGE
The antecedents of executive privilege
stretch back to George Washington�s refusal
to turn over to Congress the instructions
given to the U.S. diplomats who negotiated
the Jay Treaty with Britain in 1794.
Presidents from Andrew Jackson to
Franklin Roosevelt have used the doctrine to
protect cabinet officers and confidential
memos.
In 1861, for instance, Abraham Lincoln
refused to comply with a congressional
request to turn over dispatches sent by the
commander of Fort Sumter, where the Civil War
started, to the War Department.
The first administration to use the
term �executive privilege� was that of
President Dwight Eisenhower in 1954.
�Congress has Anti-communist crusader Sen. Joseph
absolutely no McCarthy, R-Wis., had planned to subpoena
right to ask Eisenhower�s chief of staff, Sherman Adams,
[White House as part of a tangled battle between McCarthy
personnel] to and the secretary of the Army.
testify in any Eisenhower told his advisers that
way, shape, or �Congress has absolutely no right to ask
form about the [White House personnel] to testify in any
advice that they way, shape or form about the advice that they
were giving to me were giving to me at any time on any
at any time on subject.�
any subject.� Ike flatly declared: �My people are
� PRESIDENT not going to be subpoenaed.�
DWIGHT EISENHOWER One historian has called Eisenhower�s
stand �the most sweeping assertion of
executive privilege ever uttered,� but
McCarthy�s investigation fizzled out so the
issue was never put to the test.
NIXON FOILED IN 1974
The doctrine remained dormant until
Nixon, the man who had served as Eisenhower�s
vice president, was president in 1974.
Nixon squared off with a Senate
committee and with the special prosecutor
investigating the 1972 break-in at Democratic
National Committee headquarters in
Washington�s Watergate building.
At first, when a Senate committee
wanted to summon White House counsel John
Dean to testify as to what he knew of the
Watergate break-in and a cover-up, Nixon
refused, saying �no president could ever
agree to allow the counsel to the president
to go down and testify before a
[congressional] committee.� Later Nixon
relented a bit, saying he would not invoke
executive privilege to block his aides or
former aides from testifying to the Senate
Watergate committee.
But when it came to the Oval Office
tape recordings � with their damning
conversations recording Nixon conspiring with
Haldeman and others to impede the Watergate
investigation � Nixon refused to give them
up, citing executive privilege.
Nixon�s lawyer, James St. Clair,
argued in his brief to the Supreme Court that
�the assertion of privilege by a president is
necessarily absolute and unreviewable� by any
court. In other words, if a president
asserted that certain memos or tapes were too
confidential to hand over to a judge, then no
one � not even the Supreme Court �could force
him surrender them.
In his oral argument before the
Supreme Court on July 8, 1974, St. Clair told
the eight justices that public had a vital
interest in protecting the confidentiality of
the president�s conversations. The
institution of the presidency itself was at
stake.
Justice Lewis Powell interrupted St.
Clair to ask, �What public interest is there
in preserving secrecy with respect to a
criminal conspiracy?�
St. Clair responded that a prosecutor
had to prove that there was a conspiracy.
But the proof came within days, as the
court ordered Nixon to surrender the tapes.
Nixon was forced to make public a transcript
of the �smoking gun� tape of a June 23, 1973,
Oval Office conversation in which he had
plotted to cover up the Watergate break-in.
Executive privilege survived, but
Nixon�s presidency was over.
The Associated Press contributed to
this report.
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