The Basis of Executive Privilege

Everyone has heard the claim of "executive privilege" being used at every turn by the Bush administration as a way of denying information to the public and congress. But where does the President get authority from to do that?

I couldn't find anything in the Constitution which explicitly mentions the idea of executive privilege and so I turned to our modern oracle The Google and came up with this interesting article by a historian David Kaiser which points out that there really is no legal basis for it.

A couple of excerpts from the article follow:

"Executive Privilege"

David Kaiser

...In Impeachment, Berger drew on English precedents and constitutional debates to show that to them, that clause included not only criminal acts, but acts tending to corrupt the body politic (Madison, in this connection, even referred to abuse of the pardon power as an impeachable offense), or even, critically, the pursuit of disastrous policies--a frequent grounds for impeachment in early modern Britain. And as Berger argued, and as Parliamentary history showed, the power of inquiry--to compel testimony and documents from ministers about their conduct--was, obviously, an essential concomitant of the power to impeach, since the Congress could hardly try to punish behavior that it could not find out about.

Now conflicts over the power of inquiry began during the Washington Administration, but they entered a completely new phase after the Second World War. That was not accidental. The Executive Branch has consistently maintained at least since the Second World War that it cannot exercise the functions of a permanent world power without resorting to secrecy, not only from its enemies but from Congress and the American people.

He points out that there has been an acceleration of the use of the concept of executive privilege which has its roots in a memo from 1957:

....the key episode in this controversy, upon which Berger spent most of his book, was the "Rogers Memorandum," written by Deputy Attorney General William Rogers in 1957, which first stated the case for executive privilege. The memo claimed an unlimited executive right to withhold information from Congress, pleading, among other things, the excuse that the President needed "unfettered advice" from his subordinates. (Why it should be expected that subordinates would naturally be embarrassed by the advice they had given has, frankly, always escaped me.) Rogers cited historical "precedents" going back to the beginning of the Republic, and as Berger showed, the executive branch (including Rogers himself as Secretary of State under Nixon, and Deputy Attorney General William Rehnquist) had been referring to those many decades of "precedents" ever since. The problem, as Berger spent many details pointing out, was that the memo was legally almost worthless: "a farrago of internal contradictions, patently slipshod analysis, and untenable inferences." The cases he cited, without exception, did not support his claims at all.

So this memo of legal invention becomes the "precedent" by which executive privilege is asserted today. Because law is primarily based on precedent, the longer a legal concept is allowed to stand without challenge, the more weight something like that inventive memo will carry.

The article summarizes our problem with executive privilege today:

"Executive privilege," a recent creation without real legal foundation, is rapidly becoming customary law. Once again, as Madison and Jefferson foresaw, we are faced with a struggle to confirm the liberties they secured for us.

I will allow that there are times when secrecy is a necessary function of a government; withholding information from the public for instance to prevent panic. But the idea of total secrecy where one branch of elected representatives can deny information to another branch of representatives preventing them from carrying out the duties of their office is absolutely wrong. It destroys the entire notion of separation of powers across the three branches of government. And that is what is vital about the need to revoke the assumed imperialistic claims of the Bush administration.

Last quote from a different source:

We aren't talking about a conflict between the Executive and another party that is taking place in court, where the issue of "legal" will be decided and determined. You are talking about a conflict between the legislative and executive branches where it doesn't matter "legally" what is true (look at the discussions of who defines 'high crimes and misdemeanors' and you'll find that it is not the courts but Congress - because it is a political, not legal, decision with respect to the conflict between the legislative and executive branches - an impeached president can't appeal to the Supreme Court to find that he did not "legally" commit high crimes and misdemeanors")

Maybe the courts will intervene on this one, but they have PLENTY of cover to sit it out and Congress can't always play the role of the chained heroine, about to be eaten by the Presidential dragon, and just waiting for their Sword of Justice hero, the Courts, to intervene and make it all right. That's not what the Constitution contemplated. Everyone has their own sword, their own shield and their own dragon. Use em or lose em.