The History of Executive Privilege

The History of Executive Privilege

Executive privilege is the power that the President of the United States and other members of the executive branch can claim to resist legal actions such as subpoenas. They also can defy certain interventions by both the legislative and judicial branches of government. This power is not listed in the U.S. Constitution, but the Supreme Court has found that it exists under the separations of power doctrine. The court case United States vs. Nixon recognized executive privilege, but not an “absolute privilege.” Nixon was fighting court orders and Congressional orders to release documents and evidence regarding the Watergate Scandal and eventually led to his resignation.

The first president to use executive privilege was George Washington in 1796 in response to Congressional inquiries about a treat. The House of Representatives wanted a copy and he said no, stating it was the Senate’s duty to ratify and debate treaties, not the House’s. The modern use of executive privilege originated under Presidents Harry Truman and Dwight Eisenhower regarding the hunt for alleged Communists in the government. Both administrations felt that this could be a way for Congress to hunt for things that they had no business seeing, therefore would deny them access to what they were looking for. Once the Supreme Court had ruled in the Nixon case, it essentially established the privilege officially and since then presidents have used it to varying degrees and successes.

President Clinton attempted to claim executive privilege during the Lewinski sex scandal to avoid having his aides testify in court and to limit what could be asked of him under oath. A federal court ruled against him not allowing aides to testify, but Clinton managed to restrict the types of questions that were asked of him directly to only the matter at hand. President George W. Bush has probably invoked the privilege more times that anyone else during his two terms in office. The president has used executive privilege primarily after Democrats took over Congress in 2006 since they were launching political investigations that turned into nothing more than witch hunts. The most notable example of the use is that Bush did not allow aides Karl Rove and Harriet Miers to testify regarding the U.S. Attorney firing scandal.

It is important to note that executive privilege is an important right that the president has, but it should not be used lightly. The claim to it should only be made in the interest of national security, to protect the president’s right to privacy, and if activist courts or members of Congress overstep their bounds in order to embarrass the executive branch. The Supreme Court made the proper call in acknowledging that executive privilege exists, but declaring that it has its limitations. 

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