Five times presidents sparked controversy using executive privilege

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President Trump invoked executive privilege to prevent the release of special counsel Robert Mueller’s full report on Wednesday.

The move came just ahead of a House Judiciary Committee vote on whether to hold Attorney General William Barr in contempt of Congress for his refusal to turn over the unredacted report and underlying evidence despite a subpoena.

Presidents have used executive privilege to withhold information from Congress, the courts or the public and have sparked major controversies in the past.

Here are five recent examples and their outcomes.

Richard Nixon

{mosads}Nixon invoked executive privilege six times during his presidency, mostly related to the Watergate break-in that led to his resignation.

In the 1974 case United States v. Nixon, he asserted his right to withhold information in response to a demand by special prosecutor Leon Jaworski that he surrender tape recordings made in the Oval Office.

The Supreme Court ruled unanimously on July 24 against Nixon’s argument that under executive privilege, he had the right to withhold sensitive information from other branches of government.

While the Court noted there were cases when executive privilege was necessary to protect confidential communications, Nixon’s rejection of the subpoena did not fit the bill.

“We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice,” Chief Justice Warren Burger wrote. “The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Nixon resigned weeks later.

Ronald Reagan

Reagan invoked executive privilege on three occasions, most notably in 1986 during the confirmation process for Associate Justice William Rehnquist, his nominee for chief justice of the Supreme Court.

Reagan used the privilege to prevent the release of memos Rehnquist wrote when he was an adviser to former Attorney General John Mitchell. The memos covered 1969 to 1971 and included material on the killing of four Kent State University students by members of the Ohio National Guard in 1970 and an attempt by Nixon’s so-called plumbers to steal the psychiatric records of whistleblower Daniel Ellsberg.

Within a week, the White House reached an agreement with the Senate Judiciary Committee to turn over the documents, largely brokered by former Sen. Paul Laxalt (R-Nev.), a close ally of Reagan’s.

Rehnquist went on to be confirmed 65-33.

Bill Clinton

{mossecondads}Clinton asserted executive privilege 14 times, some of them not in writing, but in 1998 became the first president since Nixon to have his use of the power struck down in court.

Clinton sought to invoke executive privilege to bar independent counsel Kenneth Starr from questioning aides, including deputy counsel Bruce R. Lindsey and communications adviser Sidney Blumenthal, in connection with Clinton’s relationship with White House intern Monica Lewinsky.

Chief U.S. District Judge Norma Holloway Johnson ruled that Starr’s need to collect evidence trumped Clinton’s interest in keeping the conversations confidential, echoing the rationale in U.S. v. Nixon.

George W. Bush

The Bush administration invoked executive privilege six times, four of them in the summer of 2007. Notably, in August 2007, Bush invoked executive privilege to shield White House adviser Karl Rove from a Senate Judiciary Committee subpoena relating to the firing of nine U.S. attorneys.

Committee Chairman Patrick Leahy (D-Vt.) pushed back, saying that Bush was not involved in the firings and as such could not invoke executive privilege.

When a House panel subpoenaed Rove on the same issue in 2008, he claimed to be exempt under the same assertion of executive privilege.

The House Judiciary Committee voted 20-14 to hold Rove in contempt of Congress. The full House never took up the contempt citation against Rove.

Rove eventually testified before the panel behind closed doors in March 2009.

Barack Obama

The Obama administration asserted executive privilege in June 2012 in response to a House investigation of Operation Fast and Furious, a controversial “gunwalking” operation in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed the running of guns in hopes that they could be tracked to Mexican drug cartel figures.

House Oversight Committee Chairman Darrell Issa (R-Calif.) demanded documents relating to the Justice Department’s response to the operation, which Attorney General Eric Holder refused to provide.

The committee voted 23-17 to hold Holder in contempt of Congress for his failure to release the documents, with the full chamber voting in favor of contempt 255-67.

The Justice Department cited executive privilege again to decline to prosecute him on the contempt charge.

Nearly four years later, District Court Judge Amy Berman Jackson ruled against Obama’s assertion of executive privilege, writing that existing disclosures relating to the operation cast doubt on the idea that the documents at issue must remain confidential.

“The Department itself has already publicly revealed the sum and substance of the very material it is now seeking to withhold,” she wrote. “Since any harm that would flow from the disclosures sought here would be merely incremental, the records must be produced.”

The administration turned over the records in April 2016.

Tags Barack Obama Bill Clinton Contempt of Congress Darrell Issa Donald Trump Eric Holder Executive privilege Patrick Leahy Robert Mueller William Barr
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