July 29, 2007


Executive privilege touchy for presidential hopefuls: Openness sounds good, but some candidates act as if they might use such a power in the future. (Peter Nicholas, July 29, 2007, LA Times)

[T]he steady expansion of presidential power in recent decades, as well as the histories of Clinton and Giuliani, suggest that the 2008 election might not bring drastic change.

Clinton was widely criticized for secrecy when she led her husband's effort to design a new healthcare system. A task force she headed ran afoul of federal law when it tried to hold closed meetings. "The public has the right to know what information is being presented," U.S. District Judge Royce C. Lamberth wrote in 1993.

President Clinton used executive privilege in an attempt to shield the first lady from questioning about Whitewater real estate deals and the Monica S. Lewinsky affair. On both issues, courts overruled the claim.

"The Whitewater and Lewinsky assertions [of executive privilege] were indefensible," said Stephen Gillers, a New York University law professor.

"It's doubtful that the president would assert the privilege for conversations between [White House aides] and Mrs. Clinton without her acquiescence," Gillers added. "So that's something she has to explain."

The senator learned from the experience and would be more open as president, a campaign spokesman said.

Giuliani resisted outside efforts to evaluate municipal programs and review city records when he was mayor. As he was leaving office in 2001, he had thousands of mayoral records hauled to a private warehouse — a move that gave rise to a city law barring such action.

"He simply backed up a truck and filled it up with his papers as if they were his private possession and took them off to this warehouse in Queens," said historian Mike Wallace of New York's John Jay College of Criminal Justice. The files are now back in public hands. But critics said it was impossible to know whether records were purged.

In another case, when the state comptroller tried to evaluate city programs, he was turned away. City agencies, newspapers and watchdog groups had to sue to look at city records. A state judge cautioned the Giuliani administration that the law called for "maximum access, not maximum withholding."

In one incident, Giuliani objected to an ad for a New York magazine that appeared on city buses, and the transit authority removed the displays. The ad had said the magazine was "possibly the only good thing in New York Rudy hasn't taken credit for." Citing freedom of speech, the courts ordered the ads restored.

A Giuliani campaign spokeswoman, Maria Comella, declined to comment.

As a threshhold matter, there's a terrible confusion of privilege with the fundamental separation of the branches here. But, perhaps because no one has ever come to the Oval Office having more clearly thought through the purposes of his presidency or perhaps because his dad had held the office, George W. Bush was always a defender of the prerogatives of the presidency, even when campaigning.

Posted by Orrin Judd at July 29, 2007 6:31 AM

Reagan used it 3 times and got the largest explanation, a paragraph's worth in this article, where as Clinton used it 14 times and it was just one sentence.

Posted by: KRS at July 29, 2007 5:14 PM