Too Much of a Good Thing? A Study on the Evolution of Executive Privilege

Abstract

There has long existed a debate surrounding the legitimacy of the highly contentious presidential power of “executive privilege”. Although the term is nowhere explicitly written in the United States Constitution, many scholars have claimed that its legitimacy lies in legal and historical precedent and its status is now equivalent to that of an implied power. In the past, executive privilege served as a mechanism in which presidents could withhold materials and information from those with oversight power (namely, Congress and the Courts). Presidents were able to do so mainly in matters that claimed to defend national security, protect the sanctity of internal White House deliberations, and preserve the privacy of top executive officials, although the power has been granted in cases of other circumstances. However, misuses of the power to cover up embarrassments of presidential administrations have suggested that the legitimacy of the power has been so abused to the point where its invocation is no longer warranted. This thesis aims to understand the evolution of executive privilege, and what exactly caused it to transform from a legitimate tool of political combat to an abused and corrupt cover-up power. Specifically, I aim to realize under what conditions executive privilege is most likely to be upheld by the legal system, and what the difficulty, or lack thereof, in invoking executive privilege demonstrates about the concentration of power in the executive branch as a whole in the United States. I hypothesize that when the president does not have the full support of the legislature, does not have the full support of the public, and invokes the claim in a fractured political climate, he will have less success in invoking executive privilege. In analyzing these conditions for Presidents Nixon, Clinton, and the younger Bush, I will be able to discern how the evolution of executive privilege went from one of legitimacy to one of extreme invalidity. This study will demonstrate that the mechanism of executive privilege was invariably used to expand the role of the executive branch in the American government, and a reduction in the scope of the power is needed in order to create a more favorable system of government in which the doctrine of separation of powers is upheld and checks and balances on each branch of government continue to exist. In this way, the secrecy surrounding the executive branch can be diminished to create a more open government that is by and for the people.