Executive privilege touchy for presidential candidates - Openness sounds good, but some have acted as if they might use such a power in the future.
WASHINGTON — Over the last six years, the Bush administration has been widely seen as one of the most secretive and resistant to outside scrutiny in modern times. It has invoked executive privilege to prevent disclosure of its internal deliberations and advanced a theory of the "unitary executive" to avoid traditional checks on presidential power. President Bush has also asserted the right to ignore parts of new laws.
At one point, Vice President Dick Cheney went so far as to declare that neither Congress nor the executive branch had the power to inquire into his activities.
Given this muscular assertion of power, which has infuriated Democrats and angered some Republicans, how will Bush's successor handle these issues? Will the next president continue or extend the Bush approach, or take a more restrained approach?
Some presidential hopefuls have made openness, including willingness to be held accountable to oversight by Congress and the public, a theme of their campaigns.
Speaking on a New Hampshire college campus not long ago, Sen. Hillary Rodham Clinton (D-N.Y.) vowed that, if elected president, she would "replace secrecy and mystery with openness."
Former New York Mayor Rudolph W. Giuliani, a candidate for the GOP nomination, lists reestablishing "accountability" as one of his 12 major campaign promises. And some others have promised executive restraint.
But the 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."
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