Executive Privilege and the Bush Administration 24 Journal of Law & Politics 2008

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24 J.L. & Pol. 1 (2008)
Executive Privilege and the Bush Administration

handle is hein.journals/jlp24 and id is 7 raw text is: Executive Privilege and the Bush Administration
Mark J. Rozell & Mitchel A. Sollenberger*
President George W. Bush has engaged in a number of battles over the
principle of executive privilege, which recognizes the right of presidents
and high-level staff to withhold information from Congress, the courts, and
ultimately the public. There is nothing unique about the existence of such
disputes, as presidents going back to the earliest years of the republic have
asserted the right to conceal various forms of information-usually
documents or testimony. To be sure, the phrase executive privilege itself
was never officially used by any presidential administration until the
1950s, but the same power effectively has existed since the Washington
administration. Some presidents have been strong advocates of this
principle; others have been sparse in their exercise of such a power.
Presidential use of executive privilege became highly contentious
during the Richard Nixon presidency primarily because of the Watergate
scandal. Nixon's efforts to use the privilege to conceal evidence of White
House criminal activity ultimately fueled a negative perception of that
presidential power. The phrase executive privilege seemed forever
linked to Watergate and the abuse of presidential power. One consequence
of this development was that Nixon's immediate successors were reluctant
to claim executive privilege because of its negative connotation.
Presidents Gerald Ford and Jimmy Carter generally avoided using
executive privilege, Presidents Ronald Reagan and George H.W. Bush also
made sparing use of this power. It was not until the presidency of Bill
Clinton that a post-Watergate administration seemed to show little or no
embarrassment about exercising executive privilege. The trouble was,
Clinton's best-known use of that power was in a personal scandal that did
not provide for the type of circumstance to create a favorable view of
executive privilege. Like Nixon's actions in Watergate, Clinton's repeated
defeats in the courtroom to conceal information and testimony of White
House aides not only damaged the legal standing of executive privilege,
but its reputation as well.
It is widely acknowledged, though not always popular, that President
George W. Bush has adopted a very expansive view of presidential
powers. Many attribute Bush's aggressive use of his powers to the tragedy
of September 11, 2001 and to the subsequent War on Terror.' Advocates
* Mark J. Rozell is Professor of Public Policy at George Mason University and Mitchel A.
Sollenberger is Assistant Professor of Political Science at University of Michigan-Dearborn.

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