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After Vietnam and Watergate, the issue of executive privilege had not registered much of a blip on the radar. However, the recent Enron scandal has allowed Congress to question the validity of the executive privilege argument. In January 2002, Comptroller General David Walker, head of the non-partisan Government Accounting Office, announced that he would sue Vice President Dick Cheney in order to obtain information about the National Energy Policy Development Group that Cheney chaired last year. Walter contended that the unprecedented lawsuit was made necessary by Cheney's refusal to cooperate voluntarily.
President George W. Bush has not claimed an "executive privilege" in connection with the GAO's information requests. However, it is likely that the Administration will assert such a privilege as the case proceeds. Certainly that is the tenor of public statements by the Vice President and the White House. According to the Administration, GAO is an arm of Congress and accordingly, its efforts to uncover the inner workings of the Executive Branch violate the constitutional principle of separation of powers.
This paper analyzes and examines the multitude of issues related to the executive branch of government at the federal level. Part II examines the definition and applicability of executive privilege as seen by both the executive and legislative branches. In Part III, past and present controversial use of executive privilege in cases such as Enron and Watergate are outlined. Lastly, this paper concludes with recommendations for improving the use of executive privilege.
II. DEFINITION AND APPLICABILITY OF EXECUTIVE PRIVILEGE
Executive privilege is a concept that gives the chief executive, i.e., the president, of the United States the right to act outside of normal channels and even outside of (though not above) the law. The United States Constitution does not explicitly mentions executive privilege. However, presidents have long claimed that the constitutional principle of separation of powers implies that the Executive Branch has a privilege to resist certain encroachments by Congress and the judiciary, including some requests for information.
In 1796, President George Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. (Dorf). According to Washington, the Senate alone plays a role in the ratification of treaties, which meant that the House had no legitimate claim to the material. (Dorf). Washington provided the documents to the Senate but not the House. (Dorf).
In 1807, the issue of executive privilege arose in court. Aaron Burr was being tried for treason and asked the court to issue a subpoena duces tecum (an order requiring the production of documents and other tangible items) against President Thomas Jefferson, who, it was thought, had in his possession a letter exonerating Burr. (Dorf). After hearing several days of argument, Chief Justice John Marshall issued the order commanding Jefferson to produce the letter. (Dorf). Marshall observed that neither the Sixth Amendment right of an accused to compulsory process nor the law of evidence contains an exception for the President. (Dorf). In response to the government's suggestion that disclosure of the letter would endanger public safety, Marshall concluded that, if true, this claim could furnish a reason for withholding it, but that the court, rather than the Executive Branch alone, was entitled to make the public safety determination after examining the letter. (Dorf).
Jefferson complied with Marshall's order. (Dorf). However, Jefferson continued to deny the authority of the court to issue it, insisting that his compliance was voluntary. (Dorf). That pattern continues today, as witnessed by the fact that President Bill Clinton negotiated the terms under which he appeared before Independent Counsel Kenneth Starr's grand jury, rather than simply answering a subpoena directing him to appear. (Dorf).
III. PAST AND PRESENT CONTROVERSIAL USE OF EXECUTIVE PRIVILEGE
Presidents often assert executive privilege even if the information or documents sought are not matters of national security. (Dorf). The reasoning behind such an assertion is that some degree of confidentiality is necessary for the Executive Branch to function effectively.
Dorf). Key advisers will hesitate to speak frankly if they must worry that what they say will eventually become a matter of public record. (Dorf).
A. UNITED STATES v. NIXON
The Supreme Court considered this argument in the 1974 case of United States v. Nixon. (Dorf). A grand jury convened by Watergate special prosecutor Leon Jaworski issued a subpoena to President Richard Nixon requiring that he produce Oval Office tapes and various written records…[continue]
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