The Watergate crisis brought the doctrine of executive privilege--the right of the president to withhold information from the coordinate branches of government and ultimately the public--to the forefront of political discourse in the United States. Although presidents for years had exercised some form of that controversial power, no event ever had such an impact on the status and practice of executive privilege.
President Richard M. Nixon's extreme claims of executive privilege--based on his unsupported view that executive privilege is an unfettered presidential prerogative--had the effect of bringing discredit to that doctrine.(1) In the post-Watergate years, Congress became vigilant in its efforts to challenge presidential claims of executive privilege through the use of public hearings to influence public opinion, the subpoena power, contempt of Congress citations, and litigation. When it comes to executive privilege, the post-Watergate presidents have had to operate in the shadow of Nixon.
This article explores the use of executive privilege in the Jimmy Carter administration. Through an examination of Carter White House documents, the strategy of this "open" presidency to manage executive privilege disputes is identified and analyzed.
Although Jimmy Carter successfully sought the presidency in 1976 as a candidate committed to open government and fundamental change from the Nixon era, as president he never rejected the right of executive privilege. Nonetheless, Carter did not make much use of that constitutional power, even when circumstances appeared to justify such action. Carter never issued any formal policy on his administration's use of executive privilege. He avoided personally responding to congressional inquiries on the subject. When his administration sought to withhold information, it usually did so without raising executive privilege as a constitutional basis for such action. Understanding the negative connotations of executive privilege and the temper of the times, Carter crafted a strategy of withholding information while avoiding, to the extent possible, getting involved in any executive privilege controversy. This strategy worked to deflect controversy on a sensitive issue, but it caused a great deal of internal administration confusion over what to do when access to information disputes arose.
Carter's response to executive privilege is very similar, in fact, to President Gerald R. Ford's efforts to avoid controversy over that doctrine.(2) The thirty-ninth president often avoided the phrase "executive privilege" and his administration generally couched decisions to withhold information in terms of "separation of powers" or the need to protect "free and open" exchanges within the White House. Clearly, Carter's advisers understood that, because of his promise to run an "open" presidency, the use of executive privilege would result in substantial criticism of the administration.
An examination of the Carter administration's handling of executive privilege makes clear just how controversial this constitutional doctrine had become as a result of Watergate. During Carter's tenure Congress displayed an aggressive posture toward gaining access to executive branch information. This article shows how the Carter White House tried to protect confidentiality, not break the pledge of an "open" presidency, and satisfy congressional demands for information at the same time.
Carter's "Policy" on Executive Privilege
Although most presidents have defended a constitutional right to withhold information on occasion, it was not until the Eisenhower administration that the phrase "executive privilege" had actually been used. Eisenhower's administration invoked executive privilege on forty occasions. What made executive privilege so controversial during the Eisenhower years was the fact that this doctrine was being cited not only by the president, but by cabinet officers and lower-level executive branch officers--oftentimes without presidential approval or knowledge.(3) During the Kennedy administration, Representative John E. Moss (D-CA) sought assurance from the president that executive privilege would not be exercised in such arbitrary fashion. The president assured Moss in writing that the policy of the Kennedy administration was that only the president could use or approve the use of executive privilege. Moss received similar assurances from presidents Johnson and Nixon.(4) Ironically, Nixon established the most elaborate privilege procedures. He emphasized that that executive privilege "must be very narrowly construed" and would "not be asserted without specific Presidential approval."(5) These guidelines contradicted Nixon's Watergate defense of an unlimited executive privilege power.(6)
Although it appeared that a precedent had been established, President Ford never responded to congressional inquiries regarding his administration's policy on executive privilege. In the wake of the Watergate scandals, Ford shied away from controversy over executive privilege as much as he could.(7)
Like his predecessor, President Carter never issued a formal memorandum or executive order specifying his administration's policy on executive privilege. A review of White House documents reveals that certain members of the Carter administration raised the subject of developing a formal policy on executive privilege on a number of occasions. Certain members of Congress had sent inquiries to the Carter White House requesting a commitment from the president that only he would assert executive privilege, if such a power had to be exercised at all. And certain Carter White House staffers had written an executive order on executive privilege that met congressional resistance and that the president subsequently never issued.
In keeping with the precedent established by Moss, the chair of the Government Information and Individual Rights Subcommittee of the House Committee on Government Operations, Representative Richardson Preyer (D-NC), and the Ranking Minority Party member, Representative Paul N. McCloskey, Jr. (R-CA), wrote a letter to Carter on June 13, 1977, requesting a formal presidential statement of policy on the use of executive privilege. The congressmen noted in the letter that presidents Kennedy, Johnson, and Nixon had personally responded to previous such requests and had all affirmed that, "executive privilege can be invoked only by the president and would not be used without specific presidential approval." Preyer and McCloskey explained that a Carter deputy attorney general already had shown reluctance to turn over to the Senate Rules Committee a requested internal Department of justice memorandum and had seemed confused over whether executive privilege had been invoked. The controversy, they wrote, "underscored the confusion among new administration officials about the guidelines for such a claim".(8)
Carter followed the post-Watergate precedent established by Ford--he never responded to the letter. Preyer and Richardson nonetheless persisted in their efforts to get Carter to commit to an official policy limiting executive privilege to presidential use only. In May 1978, Preyer and members of his staff met with counsel to the president, Robert J. Lipshutz, and members of his staff, to discuss a variety of issues germane to the work of the Subcommittee on Government Information and Individual Rights. Although there is no official record of what transpired in that meeting, apparently Lipshutz told Preyer and the others, in response to a question, that the White House policy on executive privilege was that only the president could assert that authority. Preyer sought more than a verbal assurance of Carter's policy and wrote the following to Lipshutz soon after the meeting.
I was especially encouraged to learn that it is your policy that only
the president can invoke a claim of "executive privilege" and that so
far this administration has been able to negotiate successfully all
the disputes in regard to conflicts over requests for information
between Congress and the Executive branch. Such accommodation
encourages a lasting comity between co-equal branches of government.
In this regard I think it would he helpful both to Congress and to
the Executive branch if the president would publicly reaffirm his
policy of openness. Traditionally this has taken the form of a letter
to this subcommittee briefly stating the president's intention in
Preyer added that he planned to write a letter once again to Carter, to remind the president of the earlier request...