Clinton's decision to invoke executive privilege stirs controversy
By Jonathan Karl/CNN
September 17, 1999
Web posted at: 3:27 p.m. EDT (1927 GMT)
WASHINGTON -- By claiming executive privilege Thursday, President Bill Clinton asserted Congress has no business investigating his decision to grant clemency to 16 convicted Puerto Rican nationalists.
"Pursuant to the Constitution and separation of powers doctrine," Deputy White House Counsel Cheryl Mills wrote, "the president's authority to grant clemency is not subject to legislative oversight."
The letter came in response to a subpoena from Rep. Dan Burton (R-Indiana) for information and testimony on the president's clemency offer. Congressional investigators want to show that the president's own top law enforcement officials opposed clemency. Undaunted, the chairman of the Senate Judiciary Committee, Orrin Hatch, says he will issue his own subpoenas.
"If they say no," said Hatch, "we'll have to go to court. The court may very well hold that it's a political question. If that's so, then it's going to have to become a political event. And we're going to just have to show that these people don't shoot straight, they're not honest, they're not decent and they shouldn't be in the White House."
Even some Senate Democrats question the president's right to assert executive privilege in this case.
"The people of the country are entitled to know why this decision was reached and its ramifications," said Democratic Sen. Robert Torricelli of New Jersey, a member of the Judiciary Committee.
But in making the case for executive privilege, the White House quoted no less a legal scholar than Chief Justice William Rehnquist. In 1971, while in President Richard Nixon's Justice Department, Rehnquist wrote: "The president and his immediate advisers should be deemed absolutely immune from testimonial compulsion by a congressional committee."
"All presidents," said legal scholar Jim Hamilton, "from (Dwight) Eisenhower to (Harry) Truman on up the line, have taken steps to protect the sanctity of the deliberative process, because otherwise, they're not going to get frank advice from their aides."
But Republicans point to the case of President Gerald Ford. Faced with congressional outrage over his decision to pardon Nixon, Ford waived executive privilege and came before Congress to answer questions himself. At the time, Ford's Press Secretary Ron Nessen explained: "The best approach is the direct approach, because as president, the power of pardon is solely his."
Privately, congressional Republicans concede they will likely lose the legal battle over executive privilege, but they say the president will lose the political battle because it looks like he has something to hide.