Executive privilege: Legitimate claim or blocking move?

Story Highlights

• Executive privilege has been in place for more than two centuries
• George Washington first used it in 1796 concerning the Jay Treaty
• The issue came us during Aaron Burr's trial for treason
• Bush claiming it in his refusal to put two administration officials under oath

From Bill Mears
CNN Washington Bureau

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WASHINGTON (CNN) -- Whether for treaties, treason, political cover-up, extramarital sex, energy panels or U.S. attorneys, the legal claim of executive privilege has been invoked often in American politics over the past two centuries.

In some circumstances, executive privilege allows the president and other executive branch officials to avoid giving certain kinds of information, records or testimony to Congress, courts, or private parties.

"Congress has the power of the subpoena, and if they issue them (subpoenas) seeking to put officials under oath, then the president can claim executive privilege," said Edward Lazarus, a legal analyst and author of a book on the Supreme Court, "Closed Chambers."

"Then you have a showdown among two co-equal branches of government, and the judiciary often becomes the referee."

The claim arises from the constitutional idea of separation of powers. It has been open to varying interpretation, and remains a controversial, often litigated part of government business.

"The main factor that courts usually use is internal deliberations," said CNN legal analyst Jeffrey Toobin. "The courts want to respect the president's internal deliberations so he can get freely given advice from his aides. They don't want to invade that privilege.

"However, that's not an absolute privilege for everything that goes on in the White House."

Constitutional showdown

The U.S. Constitution does not expressly mention executive privilege.

President George Washington set the precedent in 1796 when he refused a House request for documents relating to how the Jay Treaty with Great Britain, which averted war and solved post-Revolution issues, was negotiated.

The Supreme Court first decided the issue in 1807, during Aaron Burr's separate trial for treason. Chief Justice John Marshall ordered President Thomas Jefferson to produce a letter that might have exonerated Burr.

In that case, the court concluded the Sixth Amendment right of compulsory process did not exempt the executive branch.

Executive privilege claims have risen sharply since the 1950s, but most presidents since Eisenhower have assured Congress it would only be asserted with their personal approval, as Bush has hinted he would do in this case. (Watch Bush refuse to allow his staff to testify publicly )

"There's at least the possibility some federal crimes may have been committed, like obstruction of justice," said Lazarus. "So clearing up this matter is, from a congressional perspective, part of their oversight function, and what the Democrats have the power to do."

Executive privilege v. public right to know

The biggest recent executive privilege case was U.S. v. Nixon (1974) during the Watergate crisis in which a criminal grand jury issued a subpoena for the president to turn over secretly recorded Oval Office audio tapes. The justices unanimously ruled against President Nixon's legal claims, saying there was a greater national interest that the tapes be produced.

The Supreme Court laid out a balancing test of sorts: a basic need for executive confidentiality and candor, weighed against the public interests of congressional oversight, a criminal probe or prosecution.

Toobin notes the Nixon precedent may not apply if the current U.S. attorneys matter reaches the high court. "The president was forced to turn over many tapes of internal deliberations at the White House because there was a pending criminal case where that evidence was relevant," Toobin said. "Here, there's no pending criminal case."

The issue emerged again in 2001, when Cheney was sued for his role chairing an energy task force.

Cheney was sued by private groups and the Government Accounting Office seeking information on what energy company officials and lobbyists may have advised the group, whose conclusions later formed the basis of the administration's energy policy.

Cheney told CNN in 2002, "I've been in this town off and on for 34 years, and during that period of time there's been a constant, steady erosion of the prerogatives and power of the Oval Office and the continual encroachment by Congress."

The private lawsuit reached the Supreme Court after two years of legal wrangling and the White House won a temporary victory.

The justices did not address the constitutional underpinnings of the broad assertion of executive privilege.

The ruling was not the final word on the dispute, it merely threw it back to the lower courts to resolve. After about five years the case was settled without the government turning over the requested documents.

Whitewater and Lewinsky

During the Whitewater investigation by independent counsel Kenneth Starr, Clinton negotiated the terms under which he would personally testify before the grand jury. He thereby avoided a subpoena directing him to talk.

That videotaped appearance in the White House led to the Monica Lewinsky scandal and to Starr referring perjury charges against the president to Congress for impeachment.

A federal judge had also ordered Clinton aides to testify before the grand jury on the Lewinsky sex-and-perjury probe, rejecting their claims of executive privilege.

Most such claims by the president are eventually negotiated with either Congress or a federal prosecutor.

Top Clinton officials appeared publicly in 1995 and 1996 before GOP-led committees investigating the Whitewater scandal. The White House withdrew initial claims of executive privilege and worked with committee members on the scope of the questioning and the release of documents.

"An even bigger factor is politics," said Toobin. "These cases are almost always settled, particularly in the Clinton administration when Congress was subpoenaing the White House all the time over Lewinsky (and) over Whitewater."

Time may be on the side of the White House, if it is determined to see this issue played out in the courts. The case could take many months, or even years to be resolved.

Toobin said the remainder of the Bush presidency - 21 months - is not enough time to see a federal case to its completion so the administration may just be hoping to delay the issue.