Bill Clinton
The Clinton White House was mired in two major scandals involving Whitewater and Monica Lewinsky. During these investigations, President Clinton used executive privilege
14 times, which included protecting First Lady Hillary Clinton from testifying during the Whitewater hearings and protecting himself from testifying in both cases.
His executive privilege claims, as well as his attorney-client claims in the Lewinsky investigation, were
challenged in federal court. Citing
U.S. v. Nixon, the courts determined that the prosecutor’s needs outweighed the confidentiality of executive documents and discussions. This ruling was not appealed to the Supreme Court, as the White House sought to avoid a headline-grabbing legal loss.
Clinton was eventually impeached by the House but not convicted the Senate, allowing him to finish his second term.
Barack Obama
President Obama’s most famous use of executive privilege came during the
“Fast and Furious” scandal. The Bureau of Alcohol, Tobacco, and Firearms had run an operation to sell guns to Mexico, in the hope that they could track those weapons to major drug cartels and apprehend some of their members. The guns were not able to be tracked and one was eventually used in the killing of a border patrol agent.
Representative Darrell Issa and Senator Chuck Grassley held hearings to determine what went wrong during the mission. Obama and Attorney General Eric Holder both said they did not know about it until a few weeks prior to the killing and did not authorize it. Congress and the Department of Justice ended up in a standoff over the sharing of 1,300 documents, leading Obama to assert executive privilege in order to keep them private. In retaliation, Congress voted to cite Holder for contempt of Congress.
Much like Nixon and Clinton, Obama’s claim of executive privilege was
rejected by a federal court, and the documents were turned over.
Clearly, in the last half-century, executive privilege has lost some of its luster. But while executive privilege may be on the ropes after several defeats in court over the years, history indicates that President Donald J. Trump and future Presidents will continue to call upon this power—and the courts will continue to judge its necessity.
