Executive Privilege Revived?: Secrecy and Conflict During the Bush Presidency

Abstract

Although well established now as a legitimate presidential power, executive privilege remains controversial. Executive privilege is controversial in part because some presidents have overreached in exercising this authority. Presidential attempts to conceal evidence of wrongdoing during the Watergate scandal that led to President Richard Nixon’s resignation and during the scandal that led to President Bill Clinton’s impeachment gave executive privilege a bad name. The phrase “executive privilege” does not appear in the Constitution. To be precise, that phrase was not a part of the common language until President Eisenhower’s administration, leading some to suggest that executive privilege therefore cannot be constitutional. These semantic, textualist challenges to executive privilege’s constitutionality fail when viewed through a broader, historical lens of past