STEVE INSKEEP, HOST:
Let's ask Cokie about one of the powers a president may use to defend himself. Executive privilege is the idea that the president can sometimes reject Congress or the courts - separate branches of government - if they demand information. President Trump's White House reportedly considered using executive privilege to stop former FBI Director James Comey from testifying this week about its investigation of Russian election interference. Comey will testify, we believe, but it remains a long-standing question. Senator Barack Obama criticized the use of executive privilege by the Bush administration in 2007.
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BARACK OBAMA: You know, there's been a tendency on the part of this administration to try to hide behind executive privilege every time there's something a little shaky that's taking place.
INSKEEP: But when he moved into the White House, President Obama tried to keep his own attorney general from releasing information about a botched gun-sting operation called Fast and Furious.
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UNIDENTIFIED REPORTER: Today the White House asserted executive privilege to shield documents from Congress.
INSKEEP: We now have the privilege of hearing Cokie Roberts, who takes your questions about how politics work. Hi, Cokie.
COKIE ROBERTS, BYLINE: Hi, Steve.
INSKEEP: Where'd the concept of executive privilege come from?
ROBERTS: Well, it appears to be based in the Constitution. The courts have said that it's implied in the Constitution, though there's no mention of it. And in the very first Congress, the Congress clashed with President Washington in its very first investigation of the executive branch, over the botched war against Native Americans led by General Arthur St. Clair. We met him in an earlier conversation about oversight.
INSKEEP: So this general goes out. His army gets terribly defeated. There's an investigation. The administration doesn't want to give information. Then what happened?
ROBERTS: So Washington convened his little, tiny Cabinet. And they decided that in principle, papers could be withheld but that in practice, none needed to be in this case. So it became moot.
INSKEEP: OK, so this goes way back. And that gets us to a listener question.
NICHOLAS HURST: This is Nicholas Hurst of Buffalo, N.Y. I wanted to know if President Nixon had ever tried to use executive privilege to keep his own obstruction of justice from becoming part of the public record.
INSKEEP: Richard Nixon, early 1970s.
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RICHARD NIXON: Unless a president can protect the privacy of the advice he gets, he cannot get the advice he needs. This principle is recognized in the constitutional doctrine of executive privilege.
ROBERTS: So that was Nixon, speaking to the public in his third big Watergate speech in April, 1974. He was explaining why he was turning over transcripts of the Oval Office tapes, rather than the tapes themselves. And he had a huge pile of transcripts high on a table next to him. The Supreme Court, of course, said that the president does have, presumptively, privileged communications, but that they are not absolutes. They are subject to judicial review. That led to a release of the tapes. It did show obstruction of justice. And, of course, Nixon resigned.
INSKEEP: OK, so subject to review by the courts - maybe that leads us to our next question here.
SCOTT TURNER: This is Scott Turner from Georgetown, Ky. Can the president violate the law and claim executive privilege in doing so?
ROBERTS: Well, I don't think a president could get away with that. And the only one we know trying it was Nixon. But, Steve, this question of executive privilege really gets to the fundamental constitutional question of the separation of powers. And it's been one the courts have been very, very wary of.
They try repeatedly to get the warring political branches to come to some sort of compromise. As a court said in a case in the Reagan administration, quote, "compromise and cooperation, rather than confrontation, should be the aim of the parties." Now, I must say, I would like to needlepoint that on a pillow or put it on - chisel it in stone in all of the government buildings.
INSKEEP: (Laughter).
ROBERTS: And in that case we quoted at the beginning, Fast and Furious, it's somewhat relevant to the Comey testimony because the judge said that the public statements of the administration had undermined the claim to privilege. And, eventually, the Obama administration did turn over the documents - after Attorney General Holder had been held in contempt of Congress. But we'll talk about congressional contempt another day.
INSKEEP: Well, Cokie, when you get around to needlepointing those pillows, I'll be buying one in the NPR store. That's commentator Cokie Roberts. And you can ask Cokie your questions about how politics and government work by emailing us at askcokie@npr.org or by tweeting us with the hashtag, #AskCokie. Transcript provided by NPR, Copyright NPR.
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