Saturday, November 15, 2008


Radley Balko, Reason - Executive privilege is the idea that a president should be able to shield his staff from congressional or legal inquiries because staffers who know they could potentially be subpoenaed may not feel as free and open to give the president candid advice. This is nonsense. . .

The phrase "executive privilege" doesn't actually appear anywhere in the Constitution. Rather, it has been inferred by presidents from the Constitution's provisions dividing power among the three branches of the federal government. Though variations on executive privilege were claimed in limited circumstances by several presidents before him, including Thomas Jefferson and Harry Truman, the term itself was first coined by President Dwight Eisenhower in 1954 during the Army-McCarthy hearings. Eisenhower went on to invoke the privilege dozens of times over the next six years.

The Supreme Court has been inconsistent on the matter. During Aaron Burr's trial for treason in 1807, President Jefferson argued something similar to executive privilege in attempting to prevent Burr from subpoenaing Jefferson's private letters about Burr. The Supreme Court found that the president is not exempt from the discovery process in a criminal trial, and ordered Jefferson to turn over the letters. He complied.

In the 1974 case U.S. v. Nixon, the Court upheld the general notion that presidential aides should be granted some room to speak candidly without fear of subpoena, but the Court also thoroughly rejected Nixon's claim of "absolute privilege." The ruling-that there's some privilege, but not absolute privilege-left a lot of gray area. Subsequent presidents Ronald Reagan, Jimmy Carter, and George H.W. Bush periodically invoked executive privilege, but it was the Bill Clinton and George W. Bush administrations that really abused the idea. . .

What we see, over and over, is that the executive privilege doctrine is most often invoked to prevent congressional committees, independent counsel, and other oversight bodies from investigating possible legal and ethical breaches by members of the executive branch. It's not being used to promote candor and open dialogue among presidential advisers, but to prevent the public from learning about possible abuses of power by members of the administration, and from holding those members accountable.

If Obama were to peremptorily swear off executive privilege early on in his administration, and vow that his staff and advisers will not have his permission to invoke it at a later date, it would not only send a clear and important message to the country that he plans to keep his vow to run a transparent and accountable government, it would also send a message to everyone working in his administration that what they say and do will be on the record, and that they should behave accordingly.


At November 16, 2008 9:06 AM, Anonymous The liberals call me libertarian, the libertarians call me commie said...

I read theagitator everyday. As I've told Mr.Balko, he makes a lot of sense when he's not proselytising about capitalism. Lots of good writing about personal freedom vs. the nanny state, the drug war, and swat team abuses. You don't have to agree with everything everybody says to learn from them.


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