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Introduction
Executive privilege is the right that is claimed by the American presidents as well as the other officials of the executive arm of the government to suspend or withhold from Congress or individuals or the courts information that has been subpoenaed or, which has been requested. The invoking of the executive privilege is considered as a measure of preventing officials and the staff of the executive arm of government from testifying in any inquiry. Though this right is not provided for in the constitution, it is inherently implied courtesy of the doctrine of separation of powers.
History of the Executive Privilege
Traditionally, Unites States of America presidents claim executive privilege when they have the belief that disclosing particular information will likely endanger the security of the may pervade the interests of the executive. Though presidential privilege is not provided for in the constitution, presidents have been claiming this right when faced with different circumstances that demand them to testify. Executive privilege has been subjected to various courts for interpretation. Based on the principle of the separation of powers, the three branches are might at times be in conflict, and the president might wish to protect some information, which can cause conflict hence he is allowed to exercise the executive privilege (Napier 1).
Executive privilege is a word that was coined in the year the 1950s, but it was there during the reign of President George Washington and subsequent presidents but they had not learned to utilize the claim to the executive privilege which hitherto served as a gauge to hold back information from the judges and the Congress. Executive privilege first came to force in 1792; at this time information was held back about a mission that had been carried out by one of the top military commanders. This forced the president to call a cabinet meeting where no official record was kept for the cabinet proceedings. The convention decided that Congress was obliged to demand any information from the Head of state and the president could only converse the papers as to when the public could allow and also had the right to deny the revelation of credentials that could cause injury to the citizens and the nation. This was considered a notable and pioneering case of executive privilege (Napier 1).
Reason for Claiming Executive Privilege
National Security: The executive privilege has been used as a measure to offer protection of significant information which cannot be released to the public due to its nature. This power to protect state secrets via executive privilege goes unchallenged.
Executive Branch Communication: Conversation between the president and his aides as well as their advisors are often recorded; this implies that the presidents have approved of the fact that executive privileges should be absolute to the secrecy of their discussions. According to the presidents, this is essential in order for the advisors to be frank and open when giving their counsel. The advisers and the aides will only feel safe if such conversations are protected or made to remain confidential. Though the executive privilege during these occasions is rare, they are often challenged. This was illustrated in the case of the United States v. Nixon where the Supreme Court recognized the need for the fortification of communiqué between the president and other top government officials and their advisers. The court posited that human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process (Longley 1).
Whereas the courts accept that there is a need to protect the information in conversations between presidents, high government officials, and their advisers, it ruled out that the right of the president to keep the conversations under the guise of executive privilege was not absolute, and hence it could be overturned by the judge; in the majority opinion of the court, justice Warrant Burger wrote, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from the judicial process under all circumstances (Longley 1). This ruling was a reaffirmation of the Marbury v Madison case which had earlier ruled that the USA court has the power to render the final decision on constitutional questions and that no person is above the law (Longley 1).
Cases 1: USA v Nixon
In the history of the USA, the most famous case of executive privilege involved President Richard Nixon during the Watergate scandal. The special prosecutor during the case authoritatively demanded that President Nixon produce all the audiotapes of all the conversations that involved him and all his staff in the white house particularly concerning the criminal charges leveled against the members of his administration. The Supreme Court in this instance noted that the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties (FindLaw 1) and human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearance and for their own interests to the detriment of the decision-making process (FindLaw 1); this followed the accusation for the violations of federal laws by the staff of the oval office which forced the prosecutor to file a motion under the condition of the Fed. Rule Crim. Proc. 17 (c) for a subpoena duces tecum (FindLaw 1) as an appraisal to oblige the president to bring into being before trial tapes and relevant papers that were interconnected to the famous conversations and alleged meetings between the president and his staff.
President Nixon, while citing executive privilege filed a suit looking for the repealing of the subpoena. The district court while treating the subpoenaed material as subject to executive privileged arrived at the conclusion that the prosecutor had adequately established that the requirement of rule 17(c) was met, hence the court issued an order permitting that the subpoenaed material be addressed to in-camera and it rejected presidents bone of contention that the judiciary lacked the influence to review any statement made by the president because of executive privilege and that the divergence between the president and the special prosecutor amounted to intra-executive.
Case 2: Executive Privilege and the Clinton Presidency
A key outstanding feature of Clintons presidency was the relationship between the courts and Congress and the administration. This relationship was characterized by various legislative and judicial inquests that resulted in various publicized clashes over several constitutional issues like presidential immunity and civil suits that constituted impeachable offenses. After the Nixon administration and the aftermath of the Watergate scandal, the succeeding presidents have been reluctant to invoke the executive privilege; Presidents Ford, Carter and Bush only invoked it once while President Reagan invoked it three times but the Clinton administration invoked executive privilege several times, particularly against grand jury subpoenas and congressional inquiries. The Clinton era produced various controversies that involved executive privileges that had a lot of impact on the executive branch of government and its power to assert itself over other branches of government.
Since President Nixon contested executive privilege and lost, President Clinton claimed it in 1998. The federal judge presiding over the case ruled that the close aides of the president could be called upon to testify during the Lewinsky trial. Clinton later agreed to also testify before the inquiry team under the negotiated the terms of his appearance in the court. The independent counsel Kenneth Karr argued that the privileges granted to the president have to be given away and that his evidence must be turned over if deemed relevant to the investigation. Another case involving executive privilege during the Clinton era was a case that involved documents subpoenaed by the grand jury into the secretary of agriculture Mike Espy. The District of Columbia found qualified privilege in the case and expanded this privilege to include communications that were made by the presidential adviser in preparing advice for the president even the communications that were not made directly (McPhie 536).
Implications of Executive Privilege on the USA
Executive privilege presents a lot of dilemmas to courts and the entire doctrine of separation of powers. This is because the chain of command as to where the privilege ends are not defined or what forms the basis of the privilege still remain undefined. It is argued that executive privilege weakens the doctrine of separation of powers because none of the presidents withheld information under appropriate circumstances, but the presidents did so only for their selfish interests and to thwart investigations into various scandals of illegality and corruption. The implications of this presidential abuse of executive privilege are serious and against democratic ideals founding the nation. Courts have observed that their judicial power to hear a case that involves presidents is often prejudiced when executive privilege is invoked and hence undermines the role of the courts to preserve the rule of law. Executive privilege has been used by the presidents and the executive to conceal their illegalities (Pallitto and Weaver 198).
Conclusion
The constitution of the USA vests a lot of executive power on the president of the Republic and hence it is designed to protect the executive communications during times of war and times of peace. This is because minus these protections, the communications between the president, heads of military, enforcement agencies and foreign countries would be subjected to risk, and it will negatively affect the decision-making process of the executive. It is therefore wise that future presidents exercise the use of the executive privilege in a manner that is beneficial to society.
Works Cited
FindLaw. UNITED STATES v. NIXON, 418 U.S. 683 (1974). 201). US Supreme Court, 2012. Web.
Longley, Robert. Executive Privilege Based on separation of powers. US Government, 2012. Web.
McPhie, Ian. Introduction to the Symposium: Executive Privilege and the Clinton Presidency , Bill of Rights Journal 8.3 (2000): 535-539. Print.
Napier, Karin. The History of Executive Privilege. Ehow, 2012. Web.
Pallitto, Robert, and William Weaver. Presidential Secrecy and the Law. Baltimore: Johns Hopkins Univ. Press, 2007. Print.
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