Former President Bill Clinton just waived his right to executive privilege, releasing some of his top aides to testify fully to a House committee about discussions of his last-minute pardons. What is executive privilege?
Executive privilege is the claim by the president that certain information is confidential and therefore not required to be disclosed to Congress or the courts. Although the phrase does not appear in the Constitution, the underlying principle does and was invoked by George Washington when he refused to release to Congress all documents pertaining to treaty negotiations. Eisenhower used it when he issued an order blocking a congressional subpoena of State Department personnel files during the Communist-hunting days of Sen. Joseph McCarthy. Most often, executive privilege has been claimed to allow the president to get advice from aides, or negotiate with other heads of state, without fear that sensitive discussions will later be opened to scrutiny by the other branches. But it is not an absolute privilege as Clinton, who invoked it big time, discovered.
Although many presidents have claimed it, few have litigated it. The first was Thomas Jefferson. During Aaron Burr's treason trial, Burr said a letter written to Jefferson by a U.S. general would exonerate him. But Jefferson refused to release it, saying that the separation of powers made it inappropriate for the court to compel the president to do anything. The court said the president was not above the law, Jefferson turned over the letter, and Burr was acquitted. Richard Nixon was no more successful than Jefferson when he tried to keep from releasing his White House tapes to special prosecutor Leon Jaworski. While the Supreme Court found strongly in favor of the principle of executive privilege, the justices concluded it didn't apply to the tapes. Since the courts don't like to let the president use this shield simply to protect himself from his own misdeeds, Clinton was no more convincing when he tried to use executive privilege to keep aides from testifying during the Monica Lewinsky scandal.
Executive privilege has come up before regarding Clinton and questionable pardons. When Clinton released members of a Puerto Rican terrorist group from jail in 1999, Rep. Dan Burton--who will chair Thursday's pardon hearings--requested documents from the White House concerning the pardons. Although many documents were turned over, some were held back, with the White House citing executive privilege. Although Clinton has waived executive privilege for Thursday's hearings, if he hadn't, Congress could have challenged Clinton's claim in court. And even though Clinton is no longer president, he still has standing to invoke the privilege regarding activities that occurred during his administration.
Explainer thanks William Van Alstyne of Duke University School of Law, Alvin Felzenberg of the Heritage Foundation, Burt Neuborne of the New York University School of Law, and reader Jon Marks for suggesting the question.