What is Executive Privilege?

This term has been in the news of late as President Obama has declared that  Justice Department documents in the “Fast and Furious” operation are protected by “executive privilege.” As quoted in this New York Times article: “The president’s move to invoke executive privilege was the first time that he had asserted his secrecy powers in response to a Congressional inquiry. It elevated a fight over whether Mr. Holder must turn over additional documents about the gun case into a constitutional struggle over the separation of powers.” While not explicitly mentioned in the Constitution, there are certain perogatives given to the President. As Professor Michel Dorf, a specialist in constitutional law, states in this NPR piece: “…it’s all part of the same constellation of claims that presidents have made that in virtue of the separation of powers they are entitled to certain protections from the processes or the courts that ordinary people are not entitled to.” It is rarely used and at times this adversarial relationship between the executive and legislative branches must by adjudicated by the third branch of government. Additional information can be found:  Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments (CRS);  Politics of Executive Privilege  and Congressional Access to National Security Information both by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress; When Presidents Invoke Executive Privilege (PBS); What is Executive Privilege? (Associated Press); The Presidential Aegis: Demands for Papers (CRS Annotated Constitution); Secrecy and Separated Powers: Executive Privilege Revisited (Iowa Law Review); and Symposium: Executive Privilege and the Clinton Presidency (William and Mary Bill of Rights Journal).

 

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