Tug of war over executive privilege

At one time or another, almost every occupant of the White House has tried to keep Congress from prying into presidential affairs.

George Washington refused to let the House of Representatives see presidential papers dealing with a controversial foreign treaty. Andrew Jackson said Congress couldn't have documents detailing negotiations over the shape of Maine. John Tyler denied the House access to reports on fraud perpetrated against the Cherokee Indians.

In more modern times, President Nixon said the Senate had no right to hear his Watergate tapes.

Now President Reagan and Congress are marching toward a ''historical confrontation,'' in the words of one expert, over whether the President has the privilege of keeping secrets from Capitol Hill.

The House, denied some sensitive Environmental Protection Agency papers, has voted to begin criminal proceedings against EPA chief Anne Gorsuch. The White House, in turn, is suing to stop Congress's hand.

As yet there is no talk of compromise. The dispute is likely to become the most serious standoff on this aspect of the balance of powers since the Nixon tape case.

''I feel the issue is of great importance,'' says Harvard professor Raoul Berger, author of a book on presidential claims of executive privilege.

The struggle is basically a wrestling match to determine which branch of government is stronger. The Founding Fathers, says Professor Berger, intended that Congress be the more muscular - but, over the years, presidents have often successfully eluded requests for information from Capitol Hill.

George Washington, for instance: In 1796, the House asked President Washington for his correspondence with US diplomats who negotiated the controversial Jay Treaty with Britain. Washington refused, on the grounds that delicate diplomatic negotiations require as much secrecy as possible. The House debated this insult for a month, but took no action.

A series of Presidents - including Jefferson, Monroe, Jackson, Tyler, and Lincoln - continued to win in similar confrontations. But it wasn't until the 1950s, when President Eisenhower forbade his attorney general's appearance before Sen. Joseph McCarthy's Un-American Activities Committee, that such refusals were extended to more than presidential papers, and dignified with the term ''executive privilege.''

Berger, however, says he feels the doctrine of executive privilege has no basis in the Constitution.

''There really is no such doctrine in the law. It's a 20th-century fantasy,'' he claims.

Congress has never really forced a showdown over executive privilege, admits a congressional counsel. Capitol Hill and the White House have actually come to blows over the issue only once, with the fight for possession of the Watergate tapes. The Senate Watergate Committee lost its court bid for the tapes - but the Supreme Court ruled that President Nixon had to release them to special prosecutor Leon Jaworski.

''The issue (of executive privilege) has yet to be resolved,'' concludes the Congressional Quarterly Guide to Congress.

President Reagan's first exchange of harsh words with Congress over the issue occurred last year, when a House committee tried to obtain some documents from Interior Secretary James Watt. On Reagan's orders, Mr. Watt at first refused to cooperate; eventually, House members were allowed one day to peruse the disputed papers. No photocopying was permitted.

The current spat is more serious. EPA chief Gorsuch, held in contempt of Congress by the House, technically could be arrested by the House Sergeant at Arms, according to some interpretations of the law. In an attempt to head off criminal prosecution of Mrs. Gorsuch, the White House has filed a civil suit naming as defendents everyone from House Speaker Thomas P. O'Neill to House doorkeeper James T. Molloy.

''The President had a right and even an obligation to withhold those (EPA) papers,'' insists a high Justice Department official. The next step will be the House's response to the White House suit.

''Our view is that the suit will not withstand a motion to dismiss,'' claims Steven Ross, assistant general counsel of the House. A dismissal would force a reluctant Justice Department to prosecute Mrs. Gorsuch, Mr. Ross says.

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