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Old April 13th, 2015, 04:58 AM   #1
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Executive privilege

Hi, I'm having troubles with understanding the executive privilege dilemma in United States v. Nixon case. Shouldn't president be able to withhold information requested by the courts in matters relating to his office?
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Old April 13th, 2015, 05:07 AM   #2
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The use of executive privilege goes back to 1791 when President Washington used to it not give the Congress information on the Army's defeat at the Battle of the Wabash.

The Congress, the Courts and the President all have Constitutional duties which affect the privilege. For a discussion of Executive Privilege from the Miller Center at UVA:


Their conclusion is:

It is difficult for scholars to agree on the problems related to executive privilege, which makes it even more difficult to identify a single policy solution. Even if consensus can be reached, any viable policy solution must be acceptable to both Congress and the executive branch, and implementable in practice. Facing these impediments to progress, executive privilege will likely remain an intractable problem into the foreseeable future.

Last edited by newhandle; April 13th, 2015 at 05:09 AM.
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Old April 13th, 2015, 04:35 PM   #3
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As the Supreme Court pointed out, when there is substantial reason to suspect that the recipient of the information or confidence is participating in the criminal activity, the privilege does not apply.

By the time the case got to the Supreme Court, there was such substantial reason.
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Old April 15th, 2015, 11:29 AM   #4
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The concept of executive privilege is that the executive branch is entitled to have discussions to determine policy choices that will not be discoverable by the legislative branch. The underlying rationale for the privilege is that if all conversations and advice are discoverable, the President or his subordinates may not receive advice that would prove to be unpopular and decision making would then suffer.

The difficulty with executive privilege is that it is contrary to oversight role that Congress has overseeing the actions of the legislature. Congress is entitled to investigate actions by the Executive Branch to determine whether the Executive Branch is following the laws as prescribed by the Legislative Branch.

And this is where the conflicts arises. The Legislative Branch is seeking information about what the Executive Branch has done something consistent with their oversight role and this usually requires the Legislative Branch seeking information about why things were done in a particular way which usually gives rise to a desire to see what various administration officials were saying to each other when a policy was implemented.

At this point, there is usually a dispute between Congressional Investigators and the Executive Branch as to how much information the Executive Branch has to turn over to allow Congress to fulfill its oversight role.

Nixon, I believe, contended that the privilege was absolute, he had no obligation to turn any information over the Congress. The Supreme Court disagreed but the facts are rather specific. Several of the Watergate co-conspirators had been indicted for the conspiracy. Nixon had admitted that there were recorded conversations in existence between him and the indicted co-conspirators.

The Supreme Court decided that if Congress was investigating criminal acts of the Executive Branch and there was a sufficient likelihood that the tapes in question contained conversations relevant to the offenses charged in the indictment, then the privilege would be waived. So, the court was willing to waive Executive Privilege in a very specific set of circumstances.

These disputes seem to repeat themselves with each Congressional Investigation of the Executive Branch. The exact metes and bounds of when the Executive Branch has to provide privileged information is still, I believe, not well developed law in the United States.
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Old April 15th, 2015, 12:38 PM   #5
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Executive Privilege is a power claimed by the President to resist subpoenas and other interventions by the legislative or judicial branches of government to get information relating to the executive branch. The concept of executive privilege is not mentioned explicitly in the Constitution but is implied by the separation of powers doctrine. The Supreme Court ruled that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a sufficient showing that the "Presidential material" is essential to the justice of the case and is not outweighed by national security concerns. United States v Nixon, 418 US 683 (1974)
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