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executive privilege

To those who lived through — or have studied — the Watergate scandals, the words "executive privilege" still evoke images of cover-ups, concealment, and obstruction of justice. Legal scholar Raoul Berger called executive privilege a "constitutional myth." The Supreme Court in the Nixon cases didn’t go quite that far: It said the President can invoke executive privilege to preserve the confidentiality, for a limited time, of advice from his top aides. But the Court also said that executive privilege must bow to countervailing public interests, such as the need for evidence in a criminal case or the need of historians, journalists, and the citizenry at large for access to the historical record of their government.

For twenty years after Nixon’s downfall, executive privilege kept a low profile. Regrettably, President Clinton and his aides tried to reinvigorate the executive privilege by invoking it in their battles with congressional committees and special prosecutors, but their efforts for the most part were limited and made little headway.

The Bush Administration, by contrast, has taken up the banner of executive privilege with a vengeance. Expressing a determination to halt what they see as an "erosion" of the prerogatives of the Presidency (and even the Vice Presidency), Bush, Cheney, Ashcroft and other administration figures have asserted a sweeping view of executive privilege to impede public access to historical records of prior Presidents and Vice Presidents, to completely block public release of large numbers of Justice Department documents, and to thwart congressional investigators and public interest groups from even learning who was a part of the Vice President’s Energy Task Force (let alone what they did).

The administration’s position on executive privilege shows little recognition of the value of informed public and congressional oversight of executive branch activities. Instead, the administration’s view seems to be that how the executive branch makes policy and executes the law is "none of your business." The administration’s view has been challenged on a number of fronts, but as yet with no definitive results. The links on this page lead to details about the administration’s use of executive privilege as well as some of the litigation that has resulted.

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