Executive privilege, as defined by the Supreme Court, has significant limits. Among the most important of these are that it applies only to the President’s close advisers, that it can be overcome by countervailing public interests in disclosure, and that its force diminishes with the passage of time. The Bush Administration is testing these limits in two important cases involving requests for information about the Justice Department’s role in processing and commenting upon applications for Presidential pardons.
The Constitution does not define any procedures for the granting of executive clemency: It provides only that the President has the "Power to grant Reprieves and Pardons for Offenses against the United States." Modern Presidents, however, have authorized regulations establishing a procedure requiring anyone who wants a pardon to apply through the Justice Department’s Office of the Pardon Attorney, which investigates the case and forwards a recommendation to the White House.
In the wake of President Clinton’s departure from office and the furor that arose concerning some of his last-minute pardons, the organization Judicial Watch filed a Freedom of Information Act request for documents relating to the Pardon Attorney’s processing of pardon applications directed to President Clinton. The Justice Department has responded that its consideration of pardon applications falls within the executive privilege attaching to advice to the President and that the public interest in the propriety of the Clinton pardons cannot override the privilege.
Washington Post reporter George Lardner met a similar response when he sought historical documents concerning the Pardon Office’s handling of pardon applications, even though the applications he sought were decades old. In effect, the position of the Justice Department is that executive privilege erects an absolute barrier to public access to pardon-related documents, no matter how old. The Administration’s position thus immunizes the exercise of an important Presidential power from any public oversight and understanding, even long after the fact.
Both Judicial Watch and Mr. Lardner have filed lawsuits challenging the Administration’s expansive assertions of executive privilege over pardon-related materials. Judicial Watch’s lawsuit was dismissed by a federal district court in Washington; an appeal is expected. Mr. Lardner’s lawsuit, in which the claim of privilege is much weaker given what the Supreme Court has called the "erosion" of the privilege as time passes, is only in its earliest stages.
For key documents from the two cases, use the links below.(The documents are in pdf format and require Acrobat Reader for viewing.)