President Trump signs an executive order on health care the White House Thursday.
Photo: Jabin Botsford/The Washington Post
Photo: Jabin Botsford/The Washington Post

Opinion: Of law, pardons and executive privilege

On a recent Friday night when the headlines were being dominated by a killer hurricane, Donald Trump quietly used a power of the presidency to pardon a controversial national figure. Is there more where that came from, as the political storm intensifies and dangerously swirls around Trump himself? In the wake of numerous ongoing investigations into the U.S. president, the concept of “executive privilege” has become a topic of discussion. The pundits often bring up this term but don’t explain what it encompasses.

While the Trump Administration is rumored to be researching whether it can use executive privilege, it is by no means the first use of executive privilege by an American president. Exercising executive privilege can be traced all the way back to President George Washington. The best known use of executive privilege may have been by President Nixon, but more recently, presidents Clinton, the younger Bush, and Obama have all invoked executive privilege on at least 25 occasions.

But what is executive privilege? Perhaps this term is best explained as the president’s ability to protect his communications from disclosure (e.g. from Congressional investigations, subpoena, etc). The Supreme Court ruled, in the case involving President Nixon, that a “need to protect military, diplomatic, or sensitive national security secrets” are worthy of extending the privilege to the president. However, this privilege is not absolute. Specifically, President Nixon claimed executive privilege in an attempt to shield Oval Office recordings from Congressional investigations into the Watergate scandal. This claim made its way to the Supreme Court, which, in an 8-0 decision, established the President’s legal right to executive privilege, but ruled that the importance of the Watergate investigation outweighed Nixon’s claim.

President Bill Clinton claimed executive privilege 14 times, most notably during the Monica Lewinsky sex scandal, when Clinton tried to block investigators from asking his aides to testify. A federal judge struck down his claim, finding that no national security or other public interest was at stake.

The Obama administration invoked executive privilege to prevent the release of over 15,000 documents to Congress related to Operation Fast and Furious, the arms-trafficking sting gone wrong that came to light in 2011. The documents included communications between top officials at the Justice Department and the Bureau of Alcohol, Tobacco and Firearms, as well as with the United States Ambassador to Mexico. Due to the security concerns and the public interest involved, the judge denied the use of executive privilege.

If executive privilege can properly be used, the next question is how far down the executive line the privilege extends. Courts have ruled that the privilege applies to presidential advisers in the course of preparing advice for presidential decision-making. This involves communications authored, solicited or received by members of a White House adviser’s staff who has significant responsibility for investigating and formulating the advice to be given to the president.

Based on all the allegations Congress is investigating against the administration, they can proceed far more quickly and efficiently. Congress has the power to force the issues and the administration cannot use executive privilege to avoid disclosing the requested documents or providing witness testimony. It’s time for Congress to move past blind party loyalties and do what is best for us.

Right or wrong, many skeptics argue that attempted use of executive privilege is often to try to conceal wrongdoing or politically embarrassing information. Amid discussions concerning executive privilege, the topic of pardoning frequently follows. Our Constitution gives the president the power to grant reprieves and pardons for offenses against the United States. In interpreting this part of the Constitution, the Supreme Court has ruled that the pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, during their pendency, or after conviction and judgment.” The only exception is that “a pardon does not extend to cases of Congressional impeachment.” Other than that, the president can pardon anyone, and does not have to answer to Congress nor the courts before approving these pardons. This power arguably includes the ability to pardon himself; however, this issue has never been argued before the courts.

As is typical with the current administration, there is a lot more to come.

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