“When the President does it, that means it’s not illegal”: Richard Nixon’s Use of Executive Privilege and its Lasting Effect on the United States Presidency

The President of the United States has a responsibility to represent the American people and make executive decisions about the fate of the country. With such public exposure comes substantial protection: Secret Service, a heavily guarded residence, and safe rooms and bunkers for shelter. But to what degree is the president’s speech protected? How much are the American people allowed to police what their executive says in private—and are they even allowed to know? This is the dilemma of executive privilege, a power the president can invoke to make the decision to hold back pieces of information from the other branches of government (Holt 237). It has been used throughout the history of our country but has become increasingly prevalent within the past fifty years. President Richard Nixon’s choice during the Watergate scandal to claim executive privilege and attempt to withhold evidence from the United States v. Nixon (1974) proceedings laid the groundwork for the similar manner in which future presidents Ronald Reagan and Bill Clinton would try to use executive privilege: to protect their own reputations.

On June 7th, 1972, five burglars were caught in the headquarters of the Democratic National Convention at the Watergate complex in Washington, D.C.. Although the break-in was not a major news story at the time, it would develop into one of the most consequential political scandals in American history. Through diligent investigative reporting over the following two years, mostly on the part of Bob Woodward and Carl Bernstein of The Washington Post, it was revealed that Nixon and his White House staff were implicated in the Watergate burglary and its cover-up. While investigating the Watergate break-in, judge John J. Sirica ordered that President Nixon yield tape recordings of his conversations in the Oval Office. Nixon refused, claiming that as the president he had control of his “presidential communications” and could withhold them if he so desired (“Constitutional Law” 1557). His choice to withhold the tapes was rooted in the concept of separation of powers: the idea that conversations held by the executive should not be shared with the legislative or judicial branches. Nixon’s use of executive privilege in this instance was unique because it was one of the first times it had been used exclusively to withhold conversations that proved his involvement in illegal activity—including associations with the Watergate break-in as well as plans to sabotage his opponent in the 1972 presidential election. In the past, presidents had used this power sparingly and only for matters that they believed truly needed to be hidden from the public. For example, the practice was established by George Washington “when he refused to give Congress some information which it requested in regards to a military campaign against the Indians” (Holt 237). In 1954, Dwight Eisenhower, under whom Nixon was vice president, would use executive privilege regarding communications with his administration. Not until Nixon was in office in the early 1970s was executive privilege used so blatantly to protect the president’s reputation (238). By refusing to release the White House tapes, Nixon was using executive privilege to say that he felt he ought to be allowed to do what he pleased, and that other branches of government should not be allowed to interfere with that privilege. Though Nixon was not successful in covering up his involvement in the scandal (he eventually received an impeachment inquiry and subsequently resigned), his choices during Watergate left the impression that a president is permitted to publicly use the power of the executive privilege to make choices that are clearly, and possibly only, in his personal best interest. 

A decade after Nixon resigned from the presidency, Ronald Reagan came into office and began to exercise the power of executive privilege in a similar manner. Reagan had an amiable relationship with Nixon and issued a directive “on behalf of former president Nixon to give him veto power over the release of his alleged privileged White House materials,” essentially giving Nixon control over his tapes and papers even when the courts would not (Montgomery 789). It is therefore no surprise that Reagan would be in favor of Nixon’s method of using executive privilege. Reagan applied executive privilege in 1983 to documents regarding the Environmental Protection Agency (EPA). A subcommittee in the House began to investigate a possible issue relating to hazardous waste laws and had subpoenaed documents from the EPA. The reasons for applying executive privilege at the time were to protect the “sensitive nature of ‘internal deliberations’ and the need to keep secret ‘prosecutorial strategy’” (Rozell 766, 1997). Though the administration was eventually forced to back down, the House subcommittee investigating the EPA would later claim that the papers being withheld “had not been thoroughly reviewed” and that the reason those documents were not made public was “to cover up wrongdoing at the EPA” (768, 1997). In this instance, Reagan used executive privilege to mask issues within his administration that he did not want affecting the public’s perception of him, something he would not have been able to get away with had Nixon not done it ten years prior. When he used executive privilege, Reagan made sure to note that “[he could] no longer insist on executive privilege if there’s a suspicion in the minds of the people that maybe it is being used to cover some wrongdoing” (Taylor A1). Reagan’s insistence that he would never use executive privilege to “cover some wrongdoing” shows another form in which the ghost of the Nixon administration lingered. Despite Reagan’s “numerous other forms of information control,” including rigid classification of documents and “lifetime censorship” for innumerable employees of the government, he was clearly trying to assure the public that executive privilege specifically was something he would never use in the same way Nixon had (Rozell 761, 1997). Despite his reassurances, it is clear Reagan’s actions actually aligned with the way Nixon used executive privilege. According to historian Bruce P. Montgomery, Reagan’s administration “[aimed to strengthen] executive authority and [reassert] an absolute and unreviewable controlling interest in their White House materials” (790). This is another indication of the effect Nixon’s choices had, where future presidents, like Reagan, enjoyed an executive branch more independent from the legislative and judicial branches, and where the president faced fewer checks on his actions than he had in the past due to this distance from other branches. 

Nixon’s influence carried swiftly through the 1990s into Bill Clinton’s presidency. Nixon and Clinton were friends, and Clinton “sporadically telephoned Nixon to solicit his advice” on various political issues (Greenberg 301). Similarly to Nixon, Clinton invoked executive privilege to protect his own reputation, and faced an impeachment inquiry due to invocations of executive privilege. Unlike Nixon, Clinton was impeached, though he was never forced to leave office. Clinton employed executive privilege due to multiple scandals he was involved in while in office, notably Paula Jones’s suit against him for sexual harassment, the Whitewater real estate controversy, and his sexual affair with White House intern Monica Lewinsky. Clinton first invoked executive privilege during the Whitewater scandal, a deal he and First Lady Hillary Clinton had made regarding a piece of Arkansas real estate called Whitewater that led to their real estate partners’ savings collapsing. At the time, Clinton relied on “legal arguments put forward in Watergate by President Richard Nixon” (Labaton B14). Nixon’s arguments throughout Watergate set a precedent for Clinton’s presidency. Clinton’s most notable use of executive privilege related to the Lewinsky scandal, in which he had a sexual relationship with a White House intern while in office and lied about it under oath. Clinton tried to invoke executive privilege to “[shield] top aides from testifying about internal White House discussions” (Broder, Van Natta A1). This occurred when Clinton’s close friend and advisor refused to respond to questions about Lewinsky during his testimony (A20). Though Clinton claimed to be preserving the right to executive privilege for future presidents, Clinton was more pointedly trying to cover up a disastrous choice he had made relating to his personal life (Rozell 550, 1999). Like Nixon, Clinton was only trying to protect his reputation, not benefit the government. This is just another example of the unfortunate effect that Nixon had on the general mentality of the presidency and the way executive privilege was applied after Nixon left office. Unlike Nixon, Clinton did not receive tremendous consequences for his many political scandals. He fell back into favor with the American people as the Lewinsky scandal died down, perhaps another effect of Watergate: no other disgrace seemed quite as terrible after it. 

The titular quote to this essay is a statement Richard Nixon made in an interview with Robert Frost as he tried to explain various choices he made as president: “[W]hen the President does it, that means it’s not illegal” (“Transcript of Frost’s Interview with Nixon”). This statement summarizes Nixon’s ideology regarding executive privilege—one that has outlasted his presidency. This can be seen perhaps most predominantly today. We have a president who accepts luxurious private jets from other countries and chooses to promote his personal business ventures while in office. It is the job of United States citizens to show that this behavior is unacceptable; a president’s job is to serve the country, not himself. As put by historian Mark J. Rozell, this discussion of executive privilege “matters because executive privilege embodies the principle that no one is above the law—not even a president” (820, 1998). 

Works Cited 

Apple Jr., R. W. “President Refuses to Release Tapes; Senate Unit and Cox Serve Subpoenas; White House Expected to Ignore Them.” New York Times, late ed., 24 July 1973, A1, A18. 

Broder, John M. and Don Van Natta Jr. “Executive Privilege Invoked In Clinton Aides’ Testimony.” New York Times, late ed., 25 February 1998, A1, A20. 

“Constitutional Law. Executive Privilege. The President Does Not Have an Absolute Privilege to Withhold Evidence from a Grand Jury. Nixon v. Sirica, 487 F. 2d 700 (D. C. Cir. 1973).” Harvard Law Review, Vol. 87, No. 7, May 1974, 1557-1568. JSTOR, https://www.jstor.org/stable/1339981.

Greenberg, David. Nixon’s Shadow: The History of an Image. W. W. Norton & Company, 2003. 

Holt, Carol. “Executive Privilege.” Presidential Studies Quarterly, Vol. 16, No. 2, Spring 1986, 237-246. 

Labaton, Stephen. “Clinton Invokes Executive Privilege in Resisting Subpoena.” New York Times, late ed., 13 Dec. 1995, B14. 

Montgomery, Bruce P. “‘Source Material’: Nixon’s Ghost Haunts the Presidential Records Act: The Reagan and George W. Bush Administrations.” Presidential Studies Quarterly, Vol. 32, No. 4, Dec. 2002, 789-809. JSTOR, https://www.jstor.org/stable/27552442. 

Rozell, Mark J. “Executive Privilege in the Lewinsky Scandal: Giving a Good Doctrine a Bad Name.” Presidential Studies Quarterly, Vol. 28, No. 4, Fall 1998, 816-820. JSTOR, https://www.jstor.org/stable/27551936. 

Rozell, Mark J. “Executive Privilege in the Reagan Administration: Diluting a Constitutional Doctrine.” Presidential Studies Quarterly, Vol. 27, No. 4, Fall 1997, 760-772. JSTOR, https://www.jstor.org/stable/27551799. 

Rozell, Mark. J. “Something to Hide: Clinton’s Misuse of Executive Privilege.” PS: Political Science and Politics, Vol. 32, No. 3, Sep. 1999, 550-553. JSTOR, https://www.jstor.org/stable/420643. 

Taylor Jr., Stuart. “Reagan Asserting Claim of Privilege on Files of E.P.A.” New York Times, late ed., 18 February 1983, p. A1, D19.

“Transcript of David Frost’s Interview with Richard Nixon.” Teaching American History, https://teachingamericanhistory.org/document/transcript-of-david-frosts-interview with-richard-nixon/. 

Works Consulted 

Amar, Akhil Reed and Neal Kumar Katyal. “Executive Privileges and Immunities: The Nixon and Clinton Cases.” Harvard Law Review, Vol. 108, No. 3, January 1995, 701-726. JSTOR, https://www.jstor.org/stable/1341920. 

Hunter, Marjorie. “Congress is Wary on Nixon Decision.” New York Times, late city ed., 24 Jul. 1973, p. A1, A18. 

Rozell, Mark J. “President Nixon’s Conception of Executive Privilege: Defining the Scope and Limits of Executive Branch Secrecy.” Presidential Studies Quarterly, Vol. 22, No. 2, spring 1992, 323-335. JSTOR,  https://www.jstor.org/stable/27550950. 

Acknowledgements 

I acknowledge that I received feedback from Ms. Whitney Wagner, Sophie Krivoy, Chiara Silveri, and Beatrice Washburn on this assignment, as well as help from John Gustafson who I spoke to for the purpose of understanding the general public’s view of Clinton’s presidency better. I also acknowledge that I used a thesaurus on this assignment.