Dear Editor,
Executive privilege and presidential immunity are often confused terms as they both afford a certain amount of privacy and protection to the executive branch and to the president in particular. In reality, they are very different protections that have been created to specifically allow the president freedoms necessary to perform his duties. The nature of the US federal government mandates that all branches and members be subject to checks and balances and both executive privilege and presidential immunity have been tested and limited. Both of these privileges have been subject to Constitutional interpretation by the U.S. Supreme Court and neither of them has proven to be absolute, as has been seen in recent decades through both the Nixon and Clinton presidencies with their inherent legal debacles.
Executive privilege is the right invoked by the president and other members of the executive branch to refuse to comply with orders from both other branches, legislative and judicial, to produce requested information. It allows holders of high offices to protect certain communications that presumably would compromise national security or harm the national interest should they be made public. Executive privilege was not explicitly granted by the U.S. Constitution but has evolved over the years since George Washington first refused to produce for the House of Representatives documents involved in negotiating Pinckney’s Treaty with Great Britain.
This was the starting point for the executive branch to successfully challenge other branches of government from hindering executive functions by micromanaging and perhaps infringing upon rights that were given exclusively to the executive branch.
In the mid-twentieth century, Harry Truman and Dwight Eisenhower in particular invoked executive privilege on numerous occasions, insisting that it was necessary for the executive branch to be able to communicate information internally and conduct investigations for the good of the country (particularly during the McCarthy investigations) without resulting documents and conversations being subject to scrutiny. In order to function effectively, there was deemed the necessity for a certain amount of privacy in conducting internal executive affairs.
While commonly upheld, the right of executive privilege has not gone unchallenged. Particularly in times of controversy, it has not given the executive branch the complete right to operate in the dark. During Watergate, for example, Richard Nixon was denied this right and ordered to produce illegally obtained tapes. In this case, Nixon failed the litmus test of whether these tapes were privileged information that would compromise national security if they were revealed. While invoking executive privilege automatically serves to put the opposition in the defensive position, in this case the Supreme Court denied President Nixon and ruled that a president was limited in the use of executive privilege when it would interfere with criminal proceedings. In essence, the president was not above the law.
Likewise, Bill Clinton’s efforts to invoke executive privilege were stymied by the Court when he attempted to avoid testifying about his sexual relationship with Monica Lewinsky. This was another case where it was obvious that the use of presidential privilege had nothing to do with the necessary functions of the executive branch and everything to do with an individual president attempting to avoid criminal justice proceedings. Again, the Court cried foul and limited executive privilege to matters requiring the separation of powers for the good of the nation.
Presidential immunity is another type of presidential privilege that has been claimed both successfully and unsuccessfully by presidents from Andrew Johnson to Bill Clinton. In Mississippi v. Johnson, 1867, the Court first widely defined presidential immunity. The Marshall Court upheld the President’s right to function without judicial interference in the performance of his duties. It was deemed essential to the continuance of the Constitutional separation of powers that the president be allowed the freedom of performing his duties without the hindrance of judicial interference in the executive branch.
When Richard Nixon and Bill Clinton both attempted to use the doctrine of presidential immunity to cover personal issues, it was shown that the checks and balances of the federal government would limit this privilege also. While presidents are not to be held liable for damages or distress arising from their official functions and decisions (to allow this would effectively paralyze the presidency as no decision will please all), limits appeared on this immunity from prosecution. The Court ruled that presidential immunity did not extend to actions that were not part of presidential function. Off duty, he was just as liable for private misconduct as any other United States citizen. Nixon was forced to produce tapes arising from the break-in at the Watergate Hotel that had more to do with his campaign and the cover-up of illegal wiretapping than to any official function, while Clinton was forced to face a civil sexual harassment suit arising from his behaviour towards Paula Jones prior to his becoming president.
While the principles of the Constitution have been interpreted to afford privilege and immunity to the executive branch and the president in particular, the courts have not interpreted these privileges as absolute. In all cases, the issue is the greater good of the country. A democratic government has consistently placed limits on the executive branch in order that the president remains accountable and does not become an absolute power in himself. The separation of powers and the system of checks and balances put into place by the original US Constitution have thus been successful at curtailing any presidency from concealing wrongdoing or from taking licence to act above the law in his personal life.
Yours faithfully,
Mohamed Khan
