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Trump And The Parameters Of Executive Privilege


Earlier this week, White House communications director Hope Hicks was interviewed by the House Intelligence Committee. She was just the latest person brought before the committee as part of their investigation into Russian interference in the 2016 election. And one concept that's come up as some members of President Trump's campaign or administration are called to testify is executive privilege. Some, including former White House strategist Steve Bannon, have cited executive privilege as a reason they cannot answer certain questions.

So we wanted to hear more about that, so we called Mark Rozell. He is dean of the Schar School of Policy and Government at George Mason University, which is just outside Washington, D.C. Welcome. Thanks for talking to us.

MARK ROZELL: Thank you.

MARTIN: So tell us about the concept of executive privilege. Where did this originate? I mean, this seems a little kingly, if I may say. It doesn't seem like something that the Founding Fathers would have been that excited about.

ROZELL: Well, they weren't excited about it because they never put it into the Constitution in the first place. And the phrase executive privilege was never a part of our common language until the Eisenhower administration when that principle was first asserted by the president when he directed his attorney general to do so. But all presidents going back to George Washington have exercised some form of what we today call executive privilege. And it's basically the right that the president has under certain circumstances to withhold information from those who have compulsory power.

MARTIN: Could you talk a little bit more about how this concept was first articulated during the Eisenhower administration? Just what were the circumstances?

ROZELL: Well, there were a number of controversies at that time regarding congressional investigations, most famously the Army-McCarthy hearings. And at one point, Eisenhower declared any man who goes down to the Hill - Capitol Hill - to testify about the advice that he gave to me will not be working for me that night. So it was a rather colorful way to make the point that the president believed he had the right of confidential deliberations within the Oval Office and that he and his staff should not be subject to disclosure of every utterance that takes place in the White House.

And the principle itself has been upheld on a number of occasions. Our presidents have a kind of communications privilege so that presidents can receive candid confidential advice.

MARTIN: I was going to ask you about that. You know, how are the parameters of this generally set?

ROZELL: That's the key question to this whole issue because executive privilege is a somewhat murky concept. It's never been defined legislatively, for example. And it has evolved through customary practice a number of precedents that have been established and accepted and some judicial rulings. But otherwise, we don't have a lot of guidance as to the exact parameters that define when a claim of executive privilege is legitimate and when it is not.

MARTIN: Is there something distinctive about the way President Trump has chosen to define or is trying to use executive privilege that stands out to you as a person who's looked at presidents across history and how they've, you know, tried to address this matter? Is there something about the way this administration is addressing it that stands out to you?

ROZELL: Well, what stands out right now is that the administration has either used or said that certain testimony may be subject to executive privilege and in a very broad, sweeping way has declared that certain individuals who may know things that are important to an ongoing investigation will not testify because it is possible at some point they will be asked questions that are germane to the president's right of executive privilege.

MARTIN: That's Mark Rozell. He's the author of "Executive Privilege: Presidential Power, Secrecy, And Accountability." He's also dean of the School of Policy and Government at George Mason University. Dean Rozell, thank you so much for speaking with us.

ROZELL: Thank you. Transcript provided by NPR, Copyright NPR.