What Are the Limits of Executive Privilege?

The Bush administration has cited executive privilege in withholding documents and testimony regarding domestic surveillance and the response to Hurricane Katrina. Sept. 11 commission general counsel Daniel Marcus and Ohio State law professor Peter Shane share their insights with Scott Simon.

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SCOTT SIMON host:

This is WEEKEND EDITION from NPR News, I'm Scott Simon. The US Constitution allows presidents to invoke executive privilege when they want to have frank but confidential discussions with their closest aids. It's part of the separation of powers. Executive privilege allows presidents to solicit candid advice without scrutiny from other branches of government.

President Bush invoked it when he refused to give Congress memos written by White House counsel Harriet Myers, which helped scuttle her nomination to the US Supreme Court. Executive privilege was also an issue in the administration's resistance to sharing notes from the Vice President's Energy Task Force meetings and in their resistance to share what they knew about Hurricane Katrina's destructive potential and when.

Daniel Marcus was general counsel of the 9/11 Commission. He served in the White House and Justice Department during the Clinton Administration. He joins us in our studios. Thanks for being with us, Mr. Markus.

Mr. DANIEL MARCUS (General Counsel, September 11 Commission): Good afternoon.

SIMON: And Peter Shane teaches constitutional law at the Ohio State University. He joins us from member station WCBE in Columbus. Professor Shane, thank you very much for being with us.

Professor PETER SHANE (Constitutional Law, Ohio State University): Oh, you're very welcome.

SIMON: Mr. Marcus, if we could turn to you first, are the words executive privilege in the Constitution?

Mr. MARCUS: No, they're not, but it's now well established that there is a doctrine of executive privilege that flows, as you said in your introduction, from the idea of separation of powers, and court decisions have suggested that there's sort of a sliding scale, that you have to balance the interest of the President in having confidential communications from his closest advisors with the needs of the Congress or the courts or the 9/11 Commission to get certain information to perform its duties.

If it's about national security or foreign policy, the executive privilege is at its greatest, balanced against other interests, but if it's about Hurricane Katrina, for example, I think the presidential interest is not nearly as strong.

SIMON: Professor Shane, let's turn to you. Do you notice distinct differences in how recent administrations have interpreted and evoked executive privilege.

Professor SHANE: Sure. After the Nixon administration--President Nixon, of course, became famous, among other things, for propounding a very expansive view of the role of the presidency, and his doctrine of executive privilege was part of that. After Watergate, the Ford and Carter administrations, in a kind of bipartisan way, really tried to cut back on the use of executive privilege and claims of the scope of that authority, and really, it has been part of the legal agenda of the Reagan and the administrations of both President Bush to bring back, albeit untainted by Watergate, the Nixon administration theory of executive privilege as far as they can.

The Clinton administration had a more pragmatic view, more like the Ford and Carter administrations, until of course, the impeachment investigations led to a series of executive privilege claims, most of which were unsuccessful.

SIMON: Yes, yes, go ahead, Mr. Marcus.

Mr. MARCUS: If I could just add one thing, I think, to Peter's summary, and that is that the increased emphasis on executive privilege in the current administration coincides with their view that it's very important to reassert a strong doctrine of presidential power, and you see that reflected in the current controversy about the NSA surveillance program, for example. So the two go hand in hand, I think.

SIMON: Well, both Republican and Democratic administrations have said it's very disruptive and quite a chore for them to have to marshal their thoughts together and testify, and they've also expressed the opinion that not only is it a chore that interrupts their everyday acquittal of their duties, but that it could encourage of just cover-your-backism mentality. And I wonder how both of you gentlemen, who both served in government, feel about that.

Mr. MARCUS: I think there's something to that, but I do think, when the issues are important enough, that in today's world it becomes untenable for the White House to maintain the position that officials like the National Security Advisor and the Domestic Policy Chief can never be required to come up and testify before Congress.

Katrina's a good example where key decisions about what to do were being made in the White House, and if Congress is going to be able to fulfill its oversight function, it's not tenable to say that they can never get the testimony of the officials who made the key decisions. How else is Congress going to decide what needs to be done to manage hurricanes like this in the future? Professor SHANE: I do think what Dan said is exactly right, that there's been a trend over the last 30 years toward the concentration of decision making authority in the White House, often to the detriment of decision making at the cabinet level. If the decisions, same decisions were made at the cabinet level, there's no question that these people would be susceptible to testifying before Congress, and part of the dynamic here, and you can see it in the examples we're citing, is of course, the dynamic of partisan politics, and it's interesting to note that one of the big differences between the current Congress and, say, the Democratic Congress that President Carter faced or that President Clinton face in the opening years of his administration is that during those years, even though you had a Democratic president and a Democratic Congress, the members of Congress were still enormously vigorous with regard to protecting the institutional prerogatives of the legislative branch. Their allegiance was at least as much to the institution as to the party, and the Republican Congress has been much more deferential to the executive, much less willing to go to the mat over institutional prerogative of the legislature than their Democratic predecessors.

SIMON: Gentlemen, thank you both very much for being with us.

Professor SHANE: It's been a pleasure.

Mr. MARCUS: You're welcome.

SIMON: Peter Shane, professor of law at Ohio State University is co-author of a case book on separation of powers, and Daniel Marcus, who was general counsel to 9/11 Commission and teaches at the American University in Washington DC.

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