|
Executive
Privilege
.
.Updated
Sunday November 22, 2009 -
07:41 PM
Where does the
President of the United States get advice on policy matters, and is that advice
protected from access by others, particularly the other branches of government?
Leaders are always
seeking information from others, and often seek advice about policy and how they
conduct their responsibilities - this has been true for all times. Until
recently, and even then in only a few settings, like the Presidency of the
United States, those advisory communications can be examined by courts and the
Congress under most circumstances. However, Presidents have often claimed
the doctrine of "Executive Privilege" - a right for the
President to keep them entirely private between himself and the person providing
advice. The Privilege applies in a complex way that often includes
litigation. It is important to remember that there has been massive
litigation, and high controversy, from the time of George Washington.
There are some of the standards for applying the concept of "Executive
Privilege":
- Exactly how did the consultation occur - in
the private offices of the President - or in the midst of a large
crowd. Either can be protected - but these sorts of circumstances
determine the intent of the President to protect the information.
-
- Who is the person? Is the conferee a
senior official or appointee expected to have important information or view
on the subject in question.
-
- How important is the subject in terms of
current public issues?
-
- How important is it that the challenging
entity have the information?
-
- How important is the information or
relationship to matters of making public policy?.
.
-
- Is there criminal conduct related to the
conversation in question, and is that criminal conduct related to government
conduct or activities, or is that criminal conduct unrelated to government
business? Obviously, the privilege is weaker if such conduct is not
related to government matters. The Nixon Watergate situation is a
classic example of severe government related criminality ultimately wiping
out the privilege completely - it took years of litigation to get to that
point. When Nixon and his family tried to prevent administration
documents from going to into the public sector and lost eventually on the
basis of both court action and action from the Congress that requires
Presidents to now place all their document in government managed archives.
-
- The conflict arises in two basic
scenarios. The first in in conflicts between the President and the
Congress. The second is in court actions where testimony on these
relationships is somehow involved.
-
- Basically - the President must be awfully
close to the action - to the conversation or document - for the doctrine to
apply.
-
- The doctrine does not apply to agencies and
departments of the government - it fits only if the President is close to
the circumstances of the inquiry.
-
- While many of the subjects and resulting
documents are classified, the level of classification or the status of
classification does not really have much to do with the opening of these
relationships. Obviously other branches of the government have
security clearances to manage such a security setting.
-
- Court records are excellent sources of
information about the Executive Privilege.
-
- The Privilege is not available to an
ex-President on any conversation or transaction from the moment he leaves
office forward. It does continue to apply to matters which occurred
while the President was still in office.
-
- As time passes and the matters involved are
less relevant and the people involved are deceased, the privilege slowly
disappears and is no longer applied. The length of time is determine
by statutes, policy of the National Archives, and sometimes by federal
courts.
Copyright John
Isaacson 2002-2009
Sunday, November 22, 2009 07:41 PM
.
.
.
.
|
