Executive Privilege
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.
Sunday, February 03, 2008 07:03 PM
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