The Murky Waters of Executive Privilege

Mired by the protracted investigation into possible presidential wrongdoing, President Clinton has signaled his intention to try to stop independent counsel Kenneth Starr from digging deeper into White House activities.

Mr. Clinton maintains that he has the right of executive privilege - a very controversial power - to stop Mr. Starr from compelling testimony from key White House aides and the president's attorneys.

Executive privilege is the right of presidents to withhold information about White House operations from those who have the power of inquiry. Executive privilege usually arises when Congress demands access to White House documents or orders testimony from presidential aides on sensitive matters. Although there is no mention of this power in the Constitution, all presidents have on occasion claimed secrecy needs and refused to turn over requested documents or stopped presidential aides from testifying.

For most people, the very mention of executive privilege conjures up images of presidential abuses in the Nixon White House - in particular President Nixon's attempt to protect the infamous White House tapes. Before Nixon, all presidents exercised some form of executive privilege, and there was little doubt that they possessed that right. In fact, President Eisenhower exercised executive privilege at least 40 times - something worth keeping in mind as many of Clinton's critics claim that he is abusing that power by having exercised it perhaps as many as six times.

President Nixon gave executive privilege a bad name. He claimed that he had the right to withhold information even when such information was central to a criminal investigation. He believed that every member of the executive branch of the government possessed that power and that the courts had no right to rule on the legitimacy of executive privilege claims.

The Nixon legacy

Nixon's arguments were, of course, unfounded, but his actions had the effect of making it difficult for his successors to properly exercise this power. Now whenever a president claims executive privilege, the immediate reaction is that he is engaging in a Nixonian coverup of wrongdoing.

In the current heated environment, it is worth noting that not every claim of executive privilege means there is some devious presidential plot to conceal a crime. Presidents have secrecy needs. Historically and in court interpretations, presidents have successfully been able to claim executive privilege when they have shown (1) a national security need, or (2) that the public interest will benefit from protecting the privacy of White House discussions.

Should President Clinton formally invoke executive privilege in the current crisis, his claim will hinge on the latter circumstance. A recent US circuit court decision allows that presidents have an interest in protecting internal deliberations when such discussions involve governmental matters.

The key is whether the discussions that Clinton will try to protect had anything to do with official government business, as opposed to being discussions on how to handle political strategy during a scandal.

Given what we know at this time, it appears that Clinton may not have a strong claim to executive privilege to stop Starr from further investigating. If any of the White House discussions were germane to the current scandal, then Starr has a more compelling case for access to the information than Clinton has to presidential secrecy.

It is plausible, too, that some of the White House discussions revolved around a combination of governmental and nongovernmental matters, making the resolution of any claim of executive privilege even murkier. In such a case, it seems plausible that some parts of the White House discussions would be protected by executive privilege while others would not.

A delaying tactic?

At this stage, only the president, his closest advisers, and his attorney really know whether a claim of executive privilege is supportable. It is conceivable that a claim of executive privilege will be made not to protect the president's interest in preserving secrecy about government matters, but rather as a delaying tactic to thwart Starr's efforts while public opinion continues to build against the independent counsel's drawn out and costly investigation.

If Clinton uses executive privilege for merely strategic reasons - to delay, conceal, and possibly win the war with Starr - he, like Nixon before him, will have as a part of his legacy a reputation for having given this legitimate presidential power a bad name.

* Mark J. Rozell is associate professor of political science at American University in Washington. He is author of 'Executive Privilege: The Dilemma of Secrecy and Democratic Accountability' (Johns Hopkins University Press).