President George W. Bush was not so reluctant to claim executive privilege.
Bush moved on several fronts to reestablish executive privilege as a customary presidential power. Yet his efforts were highly controversial. In one case, he expanded the scope of executive privilege for former presidents, and even to allow them to transfer this constitutional authority under Article II to designated family representatives.
Bush issued an executive order in that effectively revised the intent of the Presidential Records Act of in a way that made it harder for the public to get access to the papers of past presidential administrations. In another case, the Bush Administration tried to expand executive privilege to protect Department of Justice DOJ documents from investigations long ago closed. This claim was particularly bothersome because the longstanding practice was to claim a right to withhold information about ongoing investigations that could be compromised by public disclosure.
The president claimed absolute immunity for White House aides, although the U. These uses of executive privilege by the Bush 43 Administration showcase how the political give-and-take of our system of separated powers often resolves such controversies.
In the former example, the president initially prevailed in large part due to a tepid response from Congress and a lack of significant opposition outside of the academic community. President Obama eventually overturned the Bush executive order. In the second example, a spate of negative publicity and aggressive efforts by a congressional committee to get access to the disputed documents resulted in the administration agreeing to turn over most of the materials it had tried to conceal.
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Finally, regarding the U. Like other constitutional powers, executive privilege is subject to a balancing test. Just as presidents and their advisers have needs of confidentiality, Congress must have access to executive branch information to carry out its constitutionally based investigative function. And of course, the power of inquiry is not absolute, whether it is wielded by Congress or by prosecutors.
In our constitutional system, the burden is on the executive to prove that it has the right to withhold information and not on Congress to prove that it has the right to investigate. Executive privilege should be reserved for the most compelling reasons.
The expansive post-Watergate reforms
It is not a power that should be routinely used to deny those with compulsory power the right of access to information. To enable the executive to withhold whatever information it wants would be to establish a bad constitutional precedent — one that would erode a core function of the legislative branch and upset the delicate balance of powers in our system. There have been proposals in Congress to develop a clear statutory definition of executive privilege. Yet no such legislation has ever passed and it is unlikely that such an effort would reduce interbranch conflicts over access to information.
To date the branches have relied on their existing constitutional powers to negotiate disputes over assertions of executive privilege. For the most part the system has worked well without a legislative solution.
Why liberals are so pathetically fixated on Watergate
Raoul Berger, Executive Privilege: A Constitutional Myth. Cambridge: Harvard University Press. Saikrishna Bangalore Prakash, Mark J.
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Rozell, University Press of Kansas, third edition. About the Author. Without complete information, the people are left to decide in some ignorance caused by their government. Also, the country really should not be involved with so many external entanglements causing such a demand for secrecy. Such extreme levels of secrecy causes a great deal of legitimate distrust towards government, and leaves those in our government intentionally breaking the trust in government — violating yet another aspect of it. A citizen rightly views government personnel acting this way, in an ever increasing manner to hide their illegal activities, in a further slide down the degenerate path, as another symptom of an out of control government answerable to none.
The current administration follows past practices, and does the usual one-ups-manship. Very logical, neat and tidy. Cost reductions are realized with less information outflow. The executive branch contends that virtually any information can be withheld when it deems the public interest to so require; the legislative branch contends that only presidential communications and possibly certain information relating to core presidential powers such as foreign policy and national security can be withheld.
How should these disputes be resolved? Why can executive privalege be used to make legislation that needs congressional approval? Lincoln invoked this privilege when he refused to provide information to Congress which documented how he deceitfully violated an agreement with the Governor of Florida and pursued actions that helped to provoke the Civil War. Given that over One Million Americans were in the process of being either killed or maimed in that war, the information requested was very much in the public interest.
However, when it was requested by Congress, the response was….
Watergate Era: ‘A’ peak in journalism
To the Senate of the United States: In answer to the resolution of the Senate of the 19th instant, requesting information concerning the quasi armistice alluded to in my message of the 4th instant, I transmit a report from the Secretary of the Navy. The 11th Amendment deals with suing the United States, and the 14th applies the Bill of Rights to the states and citizenship. Please, do provide evidence of executive privilege in either.
Compare the 11Th amendment with Article 3 Section 2. If you care about the U S Constitution and the peole , here is my number call me and I will show you the rest of the conflicts in the amendments. This article lost all merit with me when I came to the paragraph that claims Bill Clinton was impeached.
Resorting to lies to promote your own agenda is a disgrace. Marcus Tucker, Bill Clinton was impeached. He was not convicted and he finished his term, but he was impeached.
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My children required DS earlier this week and encountered a document management site that has a huge forms library. A question I have not seen answered: does executive privilege go with the office, or the person? If an official of a former administration claims executive privilege as a reason not to answer questions, who can waive that privilege? The person who was president at the time? The current president? Either of them? Can the President of the United States use executive privileges to prevent the peoples of the United States from summoning him to court for endangering the lives of all Americans by firing all of our most valuable staff in the FBI that is protecting this country.
The most prominent provision of the act was the Independent Counsel Act , which created the special prosecutor position that could be used by Congress or the Attorney General to investigate wrongdoing by some 50 senior members of the executive branch. Once appointed, the prosecutor could investigate allegations of any misconduct, with an unlimited budget and no deadline, and could only be dismissed by the Attorney General or a panel of three federal judges.
The Independent Counsel Act was reauthorized in and It expired on June 30, The Ethics in Government Law also required most federal-level public officials, members of their immediate family, and candidates for federal office to file detailed, annual financial disclosure forms. The forms must provide sources of income, investments, assets, and gifts. The ethics law also restricted former members of Congress and Congressional staffers from lobbying before an executive agency or officials on behalf of private interests for a two-year "cooling off" period.
Government officials and candidates have found loopholes to evade many of these provisions, and how far they went in restoring confidence in government is an ongoing source of debate. Campaign Finance Law The influence on wealthy individuals and corporations in politics and campaigns was not a new phenomenon in the early s. Ethics in Government Law In , Congress, determined to find a way to restored the public's confidence in government and curb the powers of the president and other senior executive branch officials, passed the Ethics in Government Act.
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