Executive privilege touchy for presidential candidates

Times Staff Writer

Over the last six years, the Bush administration has been widely seen as one of the most secretive and resistant to outside scrutiny in modern times. It has invoked executive privilege to prevent disclosure of its internal deliberations and advanced a theory of the “unitary executive” to avoid traditional checks on presidential power. President Bush has also asserted the right to ignore parts of new laws.

At one point, Vice President Dick Cheney went so far as to declare that neither Congress nor the executive branch had the power to inquire into his activities.

Given this muscular assertion of power, which has infuriated Democrats and angered some Republicans, how will Bush’s successor handle these issues? Will the next president continue or extend the Bush approach, or take a more restrained approach?

Some presidential hopefuls have made openness, including willingness to be held accountable to oversight by Congress and the public, a theme of their campaigns.


Speaking on a New Hampshire college campus not long ago, Sen. Hillary Rodham Clinton (D-N.Y.) vowed that, if elected president, she would “replace secrecy and mystery with openness.”

Former New York Mayor Rudolph W. Giuliani, a candidate for the GOP nomination, lists reestablishing “accountability” as one of his 12 major campaign promises. And some others have promised executive restraint.

But the steady expansion of presidential power in recent decades, as well as the histories of Clinton and Giuliani, suggest that the 2008 election might not bring drastic change.

Clinton was widely criticized for secrecy when she led her husband’s effort to design a new healthcare system. A task force she headed ran afoul of federal law when it tried to hold closed meetings. “The public has the right to know what information is being presented,” U.S. District Judge Royce C. Lamberth wrote in 1993.


President Clinton used executive privilege in an attempt to shield the first lady from questioning about Whitewater real estate deals and the Monica S. Lewinsky affair. On both issues, courts overruled the claim.

“The Whitewater and Lewinsky assertions [of executive privilege] were indefensible,” said Stephen Gillers, a New York University law professor.

“It’s doubtful that the president would assert the privilege for conversations between [White House aides] and Mrs. Clinton without her acquiescence,” Gillers added. “So that’s something she has to explain.”

The senator learned from the experience and would be more open as president, a campaign spokesman said.


Giuliani resisted outside efforts to evaluate municipal programs and review city records when he was mayor. As he was leaving office in 2001, he had thousands of mayoral records hauled to a private warehouse -- a move that gave rise to a city law barring such action.

“He simply backed up a truck and filled it up with his papers as if they were his private possession and took them off to this warehouse in Queens,” said historian Mike Wallace of New York’s John Jay College of Criminal Justice. The files are now back in public hands. But critics said it was impossible to know whether records were purged.

In another case, when the state comptroller tried to evaluate city programs, he was turned away. City agencies, newspapers and watchdog groups had to sue to look at city records. A state judge cautioned the Giuliani administration that the law called for “maximum access, not maximum withholding.”

In one incident, Giuliani objected to an ad for a New York magazine that appeared on city buses, and the transit authority removed the displays. The ad had said the magazine was “possibly the only good thing in New York Rudy hasn’t taken credit for.” Citing freedom of speech, the courts ordered the ads restored.


A Giuliani campaign spokeswoman, Maria Comella, declined to comment.

Sen. Barack Obama (D-Ill.), considered Clinton’s most serious challenger for the Democratic nomination, has no comparable executive record, but he has taken a cautious approach to the question of how he would operate as president, advocating openness and restraint in general without tying his hands.

Obama has promised to reserve the use of executive privilege for cases of national security or “traditionally sensitive matters.” Other candidates have kept their options open by taking no position on some of Bush’s controversial claims of power.

The Bush administration, in defending its claims of executive power, has said it was acting to restore presidential authority, which Cheney and other senior officials said had been eroded in previous years. When signing new laws, for instance, Bush sometimes issues so-called signing statements asserting his right to ignore some provisions of the law if they impinge on his executive power.


Like many of his predecessors, Bush has argued that presidents could not get candid advice if aides believed their statements would not remain confidential.

Early in Bush’s first term, Cheney refused to reveal the names of outside groups that met with an energy task force he headed; the vice president brushed off criticism that oil companies and other industry representatives had been given access while environmentalists and others were shut out.

More recently, when Democrats on Capitol Hill began looking into evidence that politics might have played an undue role in the U.S. attorney firings, Bush ordered former aides to ignore congressional subpoenas to answer questions on how the firing decisions were made.

On Wednesday, a House committee voted to hold two Bush confidants -- Chief of Staff Joshua Bolten and former White House Counsel Harriet E. Miers -- in contempt for failing to cooperate with the investigation.


Some analysts have found the administration’s justification of such actions unpersuasive.

“What you really have is a president and vice president who are eclipsing the Congress and centering so much authority in their own hands,” said Robert Dallek, a presidential biographer.

Even Republicans such as Sen. Arlen Specter of Pennsylvania have bridled at the assertion of executive authority contained in signing statements. Specter has introduced a bill to blunt their legal force.

Obama and fellow Democratic presidential hopeful John Edwards of North Carolina said they supported the bill. Clinton’s campaign said she opposed signing statements that changed a bill’s meaning. A spokeswoman for Giuliani declined to comment; former Massachusetts Gov. Mitt Romney, also running for the GOP presidential nomination, has taken no position on the Specter bill.


Sen. John McCain (R-Ariz.) came up against Bush over a signing statement in 2005. Bucking opposition from the White House, McCain pushed through a bill outlawing torture of military detainees. The president signed the bill, but issued a statement apparently reserving the right to ignore the law when he thought national security required it.

Days after Bush’s action, McCain and Sen. John W. Warner (R-Va.) of the armed services committee issued a warning of their own. “We believe the president understands Congress’ intent in passing, by very large majorities, legislation governing the treatment of detainees,” they wrote, adding: “Our committee intends through strict oversight to monitor the administration’s implementation of the new law.”

Although the current views of former Sen. Fred Thompson of Tennessee, who is expected to enter the Republican race, are not clear, he has seen the issue from several perspectives.

He served as minority counsel to the congressional committee that investigated President Nixon and the Watergate scandal. In a 1975 book, Thompson wrote that he was deeply influenced by Watergate and disgusted by the “arrogance that often accompanies power.”


Two decades later, as a senator heading a congressional inquiry into Clinton administration fundraising practices, he sparred with the White House over the release of records. Dismissing its claims of executive privilege, Thompson said that “the privilege does not extend to wrongdoing, and it does not extend to any and all information that may prove embarrassing to the president or others.”




Invoking the power


Since George Washington, presidents have been resisting requests from outside the executive branch. Some examples of how recent presidents have invoked what Dwight Eisenhower first called “executive privilege”:

John F. Kennedy: Twice, to protect the names of speechwriters and to prevent testimony regarding the Bay of Pigs.


Lyndon B. Johnson: Did not personally assert the privilege.

Richard Nixon: Six times, including to withhold FBI reports, military-assistance programs and information from the White House tapes regarding Watergate.

Gerald R. Ford: Once, regarding State Department recommendations on covert activities.

Jimmy Carter: Once, to protect policy documents related to an oil import fee.


Ronald Reagan: Three times, related to an investigation of Canadian oil leases, Superfund enforcement and memos written by future U.S. Chief Justice William H. Rehnquist while he was in the Justice Department.

George H.W. Bush: Once, regarding a document on cost overruns in a Navy program.

Bill Clinton: 14 instances, including the Whitewater and Lewinsky scandals.

George W. Bush: Three times, with respect to documents in an FBI regional office investigation, pardon documents, and documents and testimony regarding the firing of U.S. attorneys.



Source: Congressional Research Service