Executive Privilege

This week I would like to discuss Executive Privilege; what it is and how it has changed over the years. The basic idea of executive privilege is that it it grants constitutional power to the president and other members of the executive to withhold information from congress. The fascinating part of this privilege is that it is not written in our constitution, however to many ordinary citizens this idea probably seems common place. Executive privilege is an idea that I have heard about and was aware of but when I decided to research it for discussion I realized it indeed was not mentioned anywhere in the constitution. This constitutional principle is derived directly from a long history of precedent. A precedent embedded enough into our society that some people assume it part of the constitution. This is not to say it has gone unchallenged, many scholars actually reject this principal and argue that it does not exist. Some arguments have even been laid out in Supreme Court case hearings like in Mississippi v. Johnson, the petitioner stated that the president is not above the law and that the Supreme Court has judicial power over all cases under the constitution, not excluding the President. In Nixon v. Fitzgerald it was argued that the checks and balances system advises against the idea of absolute immunity and if absolute immunity does exist then the presidents actions must be defended to be within his authority.  The last argument was presented again in Clinton v. Jones, which acknowledged precedent for immunity, but rejected personal privilege for civil suits or otherwise unrelated to presidential duties. From these few examples we can see that this precedent has been challenged, but in many ways has been upheld with of course limitations being imposed. There has clearly been a balancing act between the branches to create clear, fair, and constitutionally sound precedent. Which seems fairly laborious, it would make more sense if there were legislation passed to clearly define what this power would and would not protect. Even thought the conversation has come up in Congress no initiatives have ever been made.  Maybe the next time that a case is brought forth there will be more motivation to develop a statute. Which we may not see for a while since in recent years presidents have refrained from flexing this privilege for the past controversies surrounding it. This power is mainly associated with political scandals and administrations do not want to be caught up in the wrong image. Overall I think that this is an interesting example of how our government works around issues not explicitly set out in the constitution and that are not clearly defined by the Supreme Court.

An interesting article that I read while researching this topic was The Constitution and Executive Privilege by Mark Rozell which can be found here: http://www.libertylawsite.org/2012/07/12/the-constitution-and-executive-privilege/

Rozell also wrote an article called “The Law”: Executive Privilege: Definition and Standards of Application that was in The Presidential Quarterly 


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