Former President Ronald Reagan set the stage for a new constitutional challenge over presidential privacy Wednesday when he invoked the doctrine of executive privilege to avoid turning over excerpts of his White House diaries to Iran-Contra defendant John M. Poindexter.
U.S. District Judge Harold H. Greene has said he will hold a hearing to consider Reagan’s claim, almost guaranteeing that Poindexter’s trial will be delayed from its scheduled Feb. 20 start. Greene presides over Poindexter’s trial on five felony counts of obstructing Congress, making false statements and conspiracy.
Greene has said he will apply a higher standard of confidentiality to material covered by a claim of executive privilege than to material for which no such claim is made. But he has made clear that he has not yet decided the issue, and could order Reagan to produce the diary excerpts despite his constitutional argument.
Late Wednesday, the Justice Department filed a separate brief with Greene supporting Reagan’s position. The department said the former President “has validly and properly invoked executive privilege.”
The department said last week that the court was facing a “potentially serious constitutional confrontation” over the issue. It said the confidentiality of the personal papers of President Bush and all subsequent presidents was at stake.
Although Reagan’s lawyers have cited presidential rights in trying to avoid turning over the papers, they had tried to avoid using the phrase “executive privilege.” Many still associate that phrase with former President Richard M. Nixon’s attempts to disrupt investigations of the Watergate scandal of the early 1970s. However, in an order issued earlier Wednesday, Greene made it clear that he was unwilling to play semantical games.
He asked Reagan’s lawyers if they intended to make “a formal claim . . . of executive privilege, as that term is referred to in United States vs. Nixon.” If not, the judge demanded to know why the former President had failed to deliver the diaries, as ordered earlier.
Responding a few hours later, Theodore B. Olson, Reagan’s lawyer, said: “Although the privilege for confidential presidential or executive branch communications has been described by various courts in various ways, no court has declared that the protections afforded the privilege . . . may be invoked only by reciting the phrase ‘executive privilege.’ However, if this court intended . . . that the privilege may only be invoked in that fashion, the former President reaffirms that that was, indeed (his) intention.”
So far, Reagan has claimed executive privilege only for his diaries. However, Greene on Monday ordered Reagan to give videotaped testimony for use by the defense in the Poindexter trial.
The judge gave Reagan’s lawyers until Friday to decide if they wish to invoke executive privilege concerning the testimony as well. It seems probable that the former President will broaden his claim to cover his testimony, although Olson declined to comment on his plans. Last week, Greene ordered Reagan to surrender about 30 diary entries which the judge said were potentially useful to Poindexter’s defense. Poindexter’s lawyers hope to use the papers to bolster their claim that the retired rear admiral’s actions were authorized by the President.
At that time, Greene said he would reexamine the issue if Reagan claimed executive privilege. The judge said that Reagan’s lawyers and the Justice Department would be given copies of Poindexter’s memorandum stating how the diaries fit into defense strategy. Previously, that memo was seen only by the judge. Both Reagan’s attorneys and the Justice Department will be allowed to try to persuade the judge to reverse his order.
Quoting the standard set by the Supreme Court’s decision in the 1974 case involving Nixon’s Watergate tapes, Greene said Reagan would be required to comply with Poindexter’s subpoena only if Poindexter’s “need for the information outweighs the claim of privilege.”
The high court ruled 8 to 0 that Nixon had to comply with the special prosecutor’s subpoena for the White House tapes. The court’s decision affirmed that a President has a right to protect his personal communications, but that the right is not absolute.
“The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial,” the court said.