THE CONSTITUTION makes no specific reference to executive privilege, but the Supreme Court has said that the president may assert the claim to maintain the confidentiality of his personal papers and of internal executive communications. Requiring him to make such material available to courts and Congress could inhibit frank discussion and advice in the formulation of policy. The privilege is not absolute and unqualified, however. The courts can decide--and have, in the Nixon tapes case, for example--that such material must be produced.
Are papers that do not originate in the White House or are not prepared for the president's information also protected by excutive privilege? The question arises frequently when congressional committees want documents from executive agencies and departments. It is what is now being argued over by Interior Secretary James Watt and the House Energy and Commerce Committee. The committee has recommended that the House cite the secretary for contempt because he refuses (at the direction of the president) to produce certain documents relating to government policy concerning Canadian oil companies. Of a rather sizable amount of requested material, fewer than a dozen specific items remain at issue. The rest of the original request has been provided.
Mr. Watt claims that the documents sought are privileged because they were prepared for the president's Cabinet Council on Economic Affairs and because they relate to sensitive foreign policy considerations. Even though these materials were developed by government employees working far below the Cabinet level and were not intended for the president's own use, the attorney general believes they need not be produced. The House committee, of course, disagrees strongly, contending that there is no precedent for extending executive privilege beyond the presidential level. If they cannot obtain information of this kind from executive departments, the lawmakers reason, they have no way to perform their oversight function and may even be unable to legislate on an informed basis.
Conflict between Congress and the executive branch in this area is nothing new. Health, education and welfare secretary Joseph Califano and energy secretary Charles Duncan in the Carter Cabinet both refused to make documents available to congressional committees, claiming executive privilege. So did some of their predecessors in earlier administrations. The reason there has been little guidance from the courts in this area, however, is that the parties always managed to compromise before things went too far. Secretary Watt and the House committee should be able to work something out, too. Both sides have made offers. The White House is willing to allow Energy and Commerce Committee Chairman John Dingell and ranking Republican James Broyhill to read the documents in question on a confidential basis. The chairman says he will agree only if all committee members and some staff members are allowed access to the papers for a single day under the supervision of monitors.
Secretary Watt has enough trouble with Congress already without serving as point man for the administration's effort to extend the concept of executive privilege. Surely a reasonable compromise would be in his interest as well as that of the committee. And a resolution that avoids the arrest of a Cabinet member, protracted litigation and, conceivably, detention of Mr. Watt in the nether recesses of the U. S. Capitol, while depriving everyone of a lot of fun, is probably in the public interest, too.