Executive Privilege Old As The Union
Nixon's Watergate battles shaped today's guidelines
By Charles Bierbauer/CNN
WASHINGTON (Feb. 25) -- President Bill Clinton is by no means the first to assert executive privilege. It's as old as the union. But it was Richard Nixon who is responsible for today's guidelines on what a president may or may not keep private.
Nixon had his Oval Office tapes, and the Watergate prosecutor wanted them.
The constitution says nothing about "executive privilege," so the Supreme Court in 1974 unanimously decided a president had a right to it.
"The protection of the confidentiality of presidential communications has ... constitutional underpinnings," Chief Justice Warren Burger wrote, but the "privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial."
"The court wanted to get as broad a ruling as possible because there was some doubt as to whether or not Nixon would obey a Supreme Court decision," said Professor John White of Catholic University of America.
Nixon had to hand over the tapes and soon resigned.
The court recognized the need for military and diplomatic secrecy.
Dwight Eisenhower made that a sweeping exemption, ordering Defense Department officials not to talk to Sen. Joe McCarthy's Army hearings.
Such presidential disdain has a history as old as the country's. George Washington just ignored Congress when it asked about his treaties.
Presidents can't do that now. When the Iran-Contra scandal erupted in 1986, President Reagan waived both executive privilege and attorney-client privilege.
Those two claims do get entangled. Last year, first lady Hillary Clinton was turned away by the Supreme Court. The justices stood by a lower court ruling in the Whitewater case, saying the first lady's conversations with White House lawyers did not have the same attorney-client privilege as her personal lawyers.
Though the history of this testimonial tug of war is long, the term "executive privilege" was first used in a 1940 appeals court ruling that then-Interior Secretary Harold Ickes was immune from charges. The Ickes who served President Franklin Roosevelt was the father of Clinton adviser and political strategist Harold Ickes Jr.
Typically, executive privilege disputes have been negotiated, rather than claimed, if only to avoid the appearance there is something to hide. The independent counsel and the White House are still negotiating this dispute, but there is little more that's typical in this case.