Executive privilege
Encyclopedia
In the United States government
, executive privilege is the power claimed by the President of the United States
and other members of the executive branch
to resist certain subpoena
s and other interventions by the legislative
and judicial branch
es of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution
, but the Supreme Court of the United States
ruled it to be an element of the separation of powers
doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.
The Supreme Court
confirmed the legitimacy of this doctrine in United States v. Nixon
, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a "sufficient showing" that the "Presidential material" is "essential to the justice of the case."(418 U.S. at 713-14). Chief Justice
Burger
further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.
Historically, the uses of executive privilege underscore the untested nature of the doctrine, since Presidents have generally sidestepped open confrontations with the United States Congress
and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.
and is believed to trace its roots to the English Crown Privilege.
In the context of privilege assertions by US Presidents, "In 1796, President George Washington
refused to comply with a request by the House of Representatives for documents related to the negotiation of the then-recently adopted Jay Treaty
with the Kingdom of Great Britain
. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Therefore, Washington provided the documents to the Senate but not the House."
President Thomas Jefferson
continued the precedent for this in the trial of Aaron Burr
for treason
in 1807. Burr asked the court to issue a subpoena duces tecum
to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall
, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment
to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president would be the judge of that. Jefferson complied with Marshall's order.
In 1833, President Andrew Jackson
cited executive privilege when Senator Henry Clay
demanded he produce documents concerning statements the president made to his cabinet about the removal of federal deposits from the Second Bank of the United States
during the Bank War
.
-Chambers
case of 1948. At that point, the Truman
Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems. Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters. Investigation of the State Department and other cases was stymied and the matter left unresolved.
During the Army–McCarthy hearings in 1954, Eisenhower
used the claim of executive privilege to forbid the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Department of Defense employees were also instructed not to testify on any such conversations or produce any such documents or reproductions. This was done to refuse the McCarthy Committee subpoenas of transcripts of monitored telephone calls from Army officials, as well as information on meetings between Eisenhower officials relating to the hearings. This was done in the form of a letter from Eisenhower to the Department of Defense and an accompanying memo from Eisenhower Justice. The reasoning behind the order was that there was a need for "candid" exchanges among executive employees in giving "advice" to one another. In the end, Eisenhower would invoke the claim 44 times between 1955 and 1960.
, the 1974 case involving the demand by Watergate
special prosecutor
Leon Jaworski
that President Richard Nixon
produce the audiotapes of conversations he and his colleagues had in the Oval Office
of the White House
in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records.
The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, "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" and that "[h]uman 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 decisionmaking process." This is very similar to the logic that the Court had used in establishing an "executive immunity" defense for high office-holders charged with violating citizens' constitutional rights in the course of performing their duties. The Supreme Court stated: "To read the Article II
powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III
." Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
became the first President since Nixon to assert executive privilege and lose in court, when a Federal judge ruled that Clinton aides could be called to testify in the Lewinsky scandal
.
Later, Clinton exercised a form of negotiated executive privilege when he agreed to testify before the grand jury called by Independent Counsel
Kenneth Starr
only after negotiating the terms under which he would appear. Declaring that "absolutely no one is above the law", Starr said such a privilege "must give way" and evidence "must be turned over" to prosecutors if it is relevant to an investigation.
President George W. Bush
first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno
,http://www.nytimes.com/2007/06/29/washington/29bush.html?ex=1340769600&en=84a2d395fc9d23ec&ei=5088&partner=rssnyt&emc=rss the scandal involving Federal Bureau of Investigation
(FBI) misuse of organized-crime informants James J. Bulger
and Stephen Flemmi
in Boston
, and Justice Department deliberations about President Bill Clinton's fundraising tactics, in December 2001.
Bush invoked executive privilege "in substance" in refusing to disclose the details of Vice President
Dick Cheney
's meetings with energy executives, which was not appealed by the GAO. In a separate Supreme Court decision in 2004, however, Justice Anthony Kennedy
noted "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked.' United States v. Reynolds, 345 U.S. 1, 7 (1953).
"Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These 'occasion[s] for constitutional confrontation between the two branches' are likely to be avoided whenever possible. United States v. Nixon, supra, at 692."
Further, on June 28, 2007, Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel Harriet Miers
and former political director Sara Taylor
, citing that:
On July 9, 2007, Bush again invoked executive privilege to block a congressional subpoena requiring the testimonies of Taylor and Miers. Furthermore, White House Counsel
Fred F. Fielding
refused to comply with a deadline set by the chairman of the Senate Judiciary Committee to explain its privilege claim, prove that the president personally invoked it, and provide logs of which documents were being withheld. On July 25, 2007, the House Judiciary Committee voted to cite Miers and White House Chief of Staff
Joshua Bolten for contempt of Congress
.
On July 13, less than a week after claiming executive privilege for Miers and Taylor, Counsel Fielding effectively claimed the privilege once again, this time in relation to documents related to the 2004 death of Army Ranger
Pat Tillman
. In a letter to the House Committee on Oversight and Government Reform, Fielding claimed certain papers relating to discussion of the friendly-fire
shooting “implicate Executive Branch confidentiality interests” and would therefore not be turned over to the committee.
On August 1, 2007, Bush invoked the privilege for the fourth time in little over a month, this time rejecting a subpoena for Karl Rove
. The subpoena would have required the President's Senior Advisor to testify before the Senate Judiciary Committee
in a probe over fired federal prosecutors. In a letter to Senate Judiciary Chairman Patrick Leahy
, Fielding claimed that "Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity...."
Leahy claimed that President Bush was not involved with the employment terminations of U.S. attorneys. Furthermore, he asserted that the president's executive privilege claims protecting Josh Bolten, and Karl Rove are illegal. The Senator demanded that Bolten, Rove, Sara Taylor, and J. Scott Jennings
comply "immediately" with their subpoenas, presumably to await a further review of these matters. This development paved the way for a Senate panel vote on whether to advance the citations to the full Senate. "It is obvious that the reasons given for these firings were contrived as part of a cover up and that the stonewalling by the White House is part and parcel of that same effort", Leahy concluded about these incidents.
As of July 17, 2008, Rove is still claiming executive privilege to avoid a congressional subpoena. Rove's lawyer writes that his client is "constitutionally immune from compelled congressional testimony."
subcommittee including Linda Chatman Thomsen
S.E.C. enforcement director, acting General Counsel
Andy Vollmer
, Andrew Donohue, Erik Sirri, and Lori Richards and Stephen Luparello of FINRA
. The subject of the hearings were on why the SEC had failed to act when Harry Markopolos
, a private fraud investigator from Boston alerted the Securities and Exchange Commission detailing his persistent and unsuccessful efforts to get the SEC to investigate Bernard Madoff
, beginning in 1999. Vollmer claimed executive privilege in declining to answer some questions. Subcommittee chairman Paul E. Kanjorski
asked Mr. Vollmer if he had obtained executive privilege from the U.S. attorney general. “No ... this is the position of the agency,” said Vollmer. "Did the SEC instruct him not to respond to questions?" Mr. Kanjorski asked. Vollmer replied that it was the position of the Commission and that “the answer is no.” The SEC announced Vollmer would "leave the Commission and return to the private sector," just 14 days after making the claim.
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
, executive privilege is the power claimed by the President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
and other members of the executive branch
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
to resist certain subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
s and other interventions by the legislative
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
and judicial branch
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
es of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, but the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
ruled it to be an element of the separation of powers
Separation of powers under the United States Constitution
Separation of powers is a political doctrine originating from the United States Constitution, according to which the legislative, executive, and judicial branches of the United States government are kept distinct in order to prevent abuse of power. This U.S...
doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.
The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
confirmed the legitimacy of this doctrine in United States v. Nixon
United States v. Nixon
United States v. Nixon, , was a landmark United States Supreme Court decision. It was a unanimous 8-0 ruling involving President Richard Nixon and was important to the late stages of the Watergate scandal. It is considered a crucial precedent limiting the power of any U.S. president.Chief Justice...
, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a "sufficient showing" that the "Presidential material" is "essential to the justice of the case."(418 U.S. at 713-14). Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Burger
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...
further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.
Historically, the uses of executive privilege underscore the untested nature of the doctrine, since Presidents have generally sidestepped open confrontations with the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.
Early precedents
Executive privilege is a specific instance of the more general common-law principle of deliberative process privilegeDeliberative process privilege
Deliberative process privilege is the common-law principle that the internal processes of the executive branch of a government are immune from normal disclosure or discovery in civil litigations, Freedom of Information Act requests, etc....
and is believed to trace its roots to the English Crown Privilege.
In the context of privilege assertions by US Presidents, "In 1796, President George Washington
George Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
refused to comply with a request by the House of Representatives for documents related to the negotiation of the then-recently adopted Jay Treaty
Jay Treaty
Jay's Treaty, , also known as Jay's Treaty, The British Treaty, and the Treaty of London of 1794, was a treaty between the United States and Great Britain that is credited with averting war,, resolving issues remaining since the Treaty of Paris of 1783, which ended the American Revolution,, and...
with the Kingdom of Great Britain
Kingdom of Great Britain
The former Kingdom of Great Britain, sometimes described as the 'United Kingdom of Great Britain', That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom by the Name of GREAT BRITAIN. was a sovereign...
. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Therefore, Washington provided the documents to the Senate but not the House."
President Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
continued the precedent for this in the trial of Aaron Burr
Aaron Burr
Aaron Burr, Jr. was an important political figure in the early history of the United States of America. After serving as a Continental Army officer in the Revolutionary War, Burr became a successful lawyer and politician...
for treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
in 1807. Burr asked the court to issue a subpoena duces tecum
Subpoena duces tecum
A subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....
to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president would be the judge of that. Jefferson complied with Marshall's order.
In 1833, President Andrew Jackson
Andrew Jackson
Andrew Jackson was the seventh President of the United States . Based in frontier Tennessee, Jackson was a politician and army general who defeated the Creek Indians at the Battle of Horseshoe Bend , and the British at the Battle of New Orleans...
cited executive privilege when Senator Henry Clay
Henry Clay
Henry Clay, Sr. , was a lawyer, politician and skilled orator who represented Kentucky separately in both the Senate and in the House of Representatives...
demanded he produce documents concerning statements the president made to his cabinet about the removal of federal deposits from the Second Bank of the United States
Second Bank of the United States
The Second Bank of the United States was chartered in 1816, five years after the First Bank of the United States lost its own charter. The Second Bank of the United States was initially headquartered in Carpenters' Hall, Philadelphia, the same as the First Bank, and had branches throughout the...
during the Bank War
Bank War
The Bank War is the name given to the controversy over the Second Bank of the United States and the attempts to destroy it by President Andrew Jackson. At that time, it was the only nationwide bank and, along with its president Nicholas Biddle, exerted tremendous influence over the nation's...
.
Modern exercises
During the period of 1947-49, several major security cases became known to Congress. There followed a series of investigations, culminating in the famous HissAlger Hiss
Alger Hiss was an American lawyer, government official, author, and lecturer. He was involved in the establishment of the United Nations both as a U.S. State Department and U.N. official...
-Chambers
Whittaker Chambers
Whittaker Chambers was born Jay Vivian Chambers and also known as David Whittaker Chambers , was an American writer and editor. After being a Communist Party USA member and Soviet spy, he later renounced communism and became an outspoken opponent later testifying in the perjury and espionage trial...
case of 1948. At that point, the Truman
Harry S. Truman
Harry S. Truman was the 33rd President of the United States . As President Franklin D. Roosevelt's third vice president and the 34th Vice President of the United States , he succeeded to the presidency on April 12, 1945, when President Roosevelt died less than three months after beginning his...
Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems. Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters. Investigation of the State Department and other cases was stymied and the matter left unresolved.
During the Army–McCarthy hearings in 1954, Eisenhower
Dwight D. Eisenhower
Dwight David "Ike" Eisenhower was the 34th President of the United States, from 1953 until 1961. He was a five-star general in the United States Army...
used the claim of executive privilege to forbid the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Department of Defense employees were also instructed not to testify on any such conversations or produce any such documents or reproductions. This was done to refuse the McCarthy Committee subpoenas of transcripts of monitored telephone calls from Army officials, as well as information on meetings between Eisenhower officials relating to the hearings. This was done in the form of a letter from Eisenhower to the Department of Defense and an accompanying memo from Eisenhower Justice. The reasoning behind the order was that there was a need for "candid" exchanges among executive employees in giving "advice" to one another. In the end, Eisenhower would invoke the claim 44 times between 1955 and 1960.
U.S. v. Nixon
The Supreme Court addressed 'executive privilege' in United States v. NixonUnited States v. Nixon
United States v. Nixon, , was a landmark United States Supreme Court decision. It was a unanimous 8-0 ruling involving President Richard Nixon and was important to the late stages of the Watergate scandal. It is considered a crucial precedent limiting the power of any U.S. president.Chief Justice...
, the 1974 case involving the demand by Watergate
Watergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...
special prosecutor
Special prosecutor
A special prosecutor generally is a lawyer from outside the government appointed by an attorney general or, in the United States, by Congress to investigate a government official for misconduct while in office. A reasoning for such an appointment is that the governmental branch or agency may have...
Leon Jaworski
Leon Jaworski
Leonidas "Leon" Jaworski was the second Special Prosecutor during the Watergate Scandal...
that President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
produce the audiotapes of conversations he and his colleagues had in the Oval Office
Oval Office
The Oval Office, located in the West Wing of the White House, is the official office of the President of the United States.The room features three large south-facing windows behind the president's desk, and a fireplace at the north end...
of the White House
White House
The White House is the official residence and principal workplace of the president of the United States. Located at 1600 Pennsylvania Avenue NW in Washington, D.C., the house was designed by Irish-born James Hoban, and built between 1792 and 1800 of white-painted Aquia sandstone in the Neoclassical...
in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records.
The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, "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" and that "[h]uman 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 decisionmaking process." This is very similar to the logic that the Court had used in establishing an "executive immunity" defense for high office-holders charged with violating citizens' constitutional rights in the course of performing their duties. The Supreme Court stated: "To read the Article II
Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...
powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
." Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
Clinton administration
In 1998, President Bill ClintonBill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
became the first President since Nixon to assert executive privilege and lose in court, when a Federal judge ruled that Clinton aides could be called to testify in the Lewinsky scandal
Lewinsky scandal
The Lewinsky scandal was a political sex scandal emerging in 1998 from a sexual relationship between United States President Bill Clinton and a 25-year-old White House intern, Monica Lewinsky. The news of this extra-marital affair and the resulting investigation eventually led to the impeachment of...
.
Later, Clinton exercised a form of negotiated executive privilege when he agreed to testify before the grand jury called by Independent Counsel
United States Office of the Independent Counsel
United States Office of the Independent Counsel was an independent prosecutor — distinct from the Attorney General of the United States Department of Justice — that provided reports to the Congress under . The office was terminated in 1999 and replaced by the U.S...
Kenneth Starr
Kenneth Starr
Kenneth Winston "Ken" Starr is an American lawyer and educational administrator who has also been a federal judge. He is best known for his investigation of figures during the Clinton administration....
only after negotiating the terms under which he would appear. Declaring that "absolutely no one is above the law", Starr said such a privilege "must give way" and evidence "must be turned over" to prosecutors if it is relevant to an investigation.
George W. Bush administration
The George W. Bush administration invoked executive privilege on numerous occasions.President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno
Janet Reno
Janet Wood Reno is a former Attorney General of the United States . She was nominated by President Bill Clinton on February 11, 1993, and confirmed on March 11...
,http://www.nytimes.com/2007/06/29/washington/29bush.html?ex=1340769600&en=84a2d395fc9d23ec&ei=5088&partner=rssnyt&emc=rss the scandal involving Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
(FBI) misuse of organized-crime informants James J. Bulger
James J. Bulger
James Joseph "Whitey" Bulger, Jr. is a former organized crime figure from Boston, Massachusetts.Local folklore depicted Bulger as a Robin Hood-style social bandit dedicated to protecting the neighborhood and its residents. Bulger allegedly masterminded a protection racket targeting drug kingpins...
and Stephen Flemmi
Stephen Flemmi
Stephen Joseph "The Rifleman" Flemmi is an Italian-American mobster and close associate of Winter Hill Gang boss James J. Bulger. Beginning in 1965, Flemmi was a top echelon informant for the Federal Bureau of Investigation...
in Boston
Boston
Boston is the capital of and largest city in Massachusetts, and is one of the oldest cities in the United States. The largest city in New England, Boston is regarded as the unofficial "Capital of New England" for its economic and cultural impact on the entire New England region. The city proper had...
, and Justice Department deliberations about President Bill Clinton's fundraising tactics, in December 2001.
Bush invoked executive privilege "in substance" in refusing to disclose the details of Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...
Dick Cheney
Dick Cheney
Richard Bruce "Dick" Cheney served as the 46th Vice President of the United States , under George W. Bush....
's meetings with energy executives, which was not appealed by the GAO. In a separate Supreme Court decision in 2004, however, Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
noted "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked.' United States v. Reynolds, 345 U.S. 1, 7 (1953).
"Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These 'occasion[s] for constitutional confrontation between the two branches' are likely to be avoided whenever possible. United States v. Nixon, supra, at 692."
Further, on June 28, 2007, Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel Harriet Miers
Harriet Miers
Harriet Ellan Miers is an American lawyer and former White House Counsel. In 2005, she was nominated by President George W. Bush to be an Associate Justice of the U.S...
and former political director Sara Taylor
Sara Taylor
Sara Marie Taylor is a public relations consultant who was the Director of the White House Office of Political Affairs and Deputy Assistant to President George W. Bush from February 2005 to May 30, 2007. A Republican campaign strategist, field operator, pollster, she was one of George W. Bush's...
, citing that:
The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.
On July 9, 2007, Bush again invoked executive privilege to block a congressional subpoena requiring the testimonies of Taylor and Miers. Furthermore, White House Counsel
White House Counsel
The White House Counsel is a staff appointee of the President of the United States.-Role:The Counsel's role is to advise the President on all legal issues concerning the President and the White House...
Fred F. Fielding
Fred F. Fielding
Fred Fisher Fielding is an American lawyer, and held the office of White House Counsel for US Presidents Ronald Reagan and George W. Bush.-Personal life:Fielding was born in Philadelphia and raised in Mechanicsville, Pennsylvania...
refused to comply with a deadline set by the chairman of the Senate Judiciary Committee to explain its privilege claim, prove that the president personally invoked it, and provide logs of which documents were being withheld. On July 25, 2007, the House Judiciary Committee voted to cite Miers and White House Chief of Staff
White House Chief of Staff
The White House Chief of Staff is the highest ranking member of the Executive Office of the President of the United States and a senior aide to the President.The current White House Chief of Staff is Bill Daley.-History:...
Joshua Bolten for contempt of Congress
Contempt of Congress
Contempt of Congress is the act of obstructing the work of the United States Congress or one of its committees. Historically the bribery of a senator or representative was considered contempt of Congress...
.
On July 13, less than a week after claiming executive privilege for Miers and Taylor, Counsel Fielding effectively claimed the privilege once again, this time in relation to documents related to the 2004 death of Army Ranger
United States Army Rangers
United States Army Rangers are elite members of the United States Army. Rangers have served in recognized U.S. Army Ranger units or have graduated from the U.S. Army's Ranger School...
Pat Tillman
Pat Tillman
Corporal Patrick Daniel "Pat" Tillman Jr. was an American football player who left his professional career and enlisted in the United States Army in June 2002 in the aftermath of the September 11, 2001, attacks. He joined the Army Rangers and served several tours in combat before he died in the...
. In a letter to the House Committee on Oversight and Government Reform, Fielding claimed certain papers relating to discussion of the friendly-fire
Friendly fire
Friendly fire is inadvertent firing towards one's own or otherwise friendly forces while attempting to engage enemy forces, particularly where this results in injury or death. A death resulting from a negligent discharge is not considered friendly fire...
shooting “implicate Executive Branch confidentiality interests” and would therefore not be turned over to the committee.
On August 1, 2007, Bush invoked the privilege for the fourth time in little over a month, this time rejecting a subpoena for Karl Rove
Karl Rove
Karl Christian Rove was Senior Advisor and Deputy Chief of Staff to former President George W. Bush until Rove's resignation on August 31, 2007. He has headed the Office of Political Affairs, the Office of Public Liaison, and the White House Office of Strategic Initiatives...
. The subpoena would have required the President's Senior Advisor to testify before the Senate Judiciary Committee
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...
in a probe over fired federal prosecutors. In a letter to Senate Judiciary Chairman Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
, Fielding claimed that "Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity...."
Leahy claimed that President Bush was not involved with the employment terminations of U.S. attorneys. Furthermore, he asserted that the president's executive privilege claims protecting Josh Bolten, and Karl Rove are illegal. The Senator demanded that Bolten, Rove, Sara Taylor, and J. Scott Jennings
J. Scott Jennings
Jeffery Scott Jennings , a United States political appointee in the administration of George W. Bush. The president appointed Jennings to the position of Special Assistant to the President and Deputy Director of Political Affairs on October 17, 2005...
comply "immediately" with their subpoenas, presumably to await a further review of these matters. This development paved the way for a Senate panel vote on whether to advance the citations to the full Senate. "It is obvious that the reasons given for these firings were contrived as part of a cover up and that the stonewalling by the White House is part and parcel of that same effort", Leahy concluded about these incidents.
As of July 17, 2008, Rove is still claiming executive privilege to avoid a congressional subpoena. Rove's lawyer writes that his client is "constitutionally immune from compelled congressional testimony."
House Investigation of the SEC
Leaders of the U.S. Securities and Exchange Commission testified on February 4, 2009 before the United States House Committee on Financial ServicesUnited States House Committee on Financial Services
The United States House Committee on Financial Services is the committee of the United States House of Representatives that oversees the entire financial services industry, including the securities, insurance, banking, and housing industries...
subcommittee including Linda Chatman Thomsen
Linda Chatman Thomsen
Linda Chatman Thomsen was the Director of the Division of Enforcement for the U.S. Securities and Exchange Commission from 2005 until early 2009. Since arriving at the SEC in 1995, she has worked under four SEC Chairmen: Arthur Levitt, Harvey Pitt, William H. Donaldson, and Christopher Cox. ...
S.E.C. enforcement director, acting General Counsel
General Counsel
A general counsel is the chief lawyer of a legal department, usually in a corporation or government department. The term is most used in the United States...
Andy Vollmer
Andy Vollmer
Andrew Neill Vollmer is an American lawyer, currently a partner in the securities department at law firm WilmerHale. Prior to April 2009, he had been Deputy General Counsel for the United States Securities and Exchange Commission and acting General Counsel...
, Andrew Donohue, Erik Sirri, and Lori Richards and Stephen Luparello of FINRA
Financial Industry Regulatory Authority
In the United States, the Financial Industry Regulatory Authority, Inc., or FINRA, is a private corporation that acts as a self-regulatory organization . FINRA is the successor to the National Association of Securities Dealers, Inc. ...
. The subject of the hearings were on why the SEC had failed to act when Harry Markopolos
Harry Markopolos
Harry M. Markopolos is a former securities industry executive and independent financial fraud investigator for institutional investors and others seeking forensic accounting expertise. He has received public acclaim for uncovering evidence over a period of nine years that Bernard Madoff's wealth...
, a private fraud investigator from Boston alerted the Securities and Exchange Commission detailing his persistent and unsuccessful efforts to get the SEC to investigate Bernard Madoff
Bernard Madoff
Bernard Lawrence "Bernie" Madoff is a former American businessman, stockbroker, investment advisor, and financier. He is the former non-executive chairman of the NASDAQ stock market, and the admitted operator of a Ponzi scheme that is considered to be the largest financial fraud in U.S...
, beginning in 1999. Vollmer claimed executive privilege in declining to answer some questions. Subcommittee chairman Paul E. Kanjorski
Paul E. Kanjorski
Paul E. Kanjorski is the former U.S. Representative for , serving from 1985 until 2011. He is a member of the Democratic Party.The district includes the cities of Scranton, Wilkes-Barre, and Hazleton, as well as most of the Poconos....
asked Mr. Vollmer if he had obtained executive privilege from the U.S. attorney general. “No ... this is the position of the agency,” said Vollmer. "Did the SEC instruct him not to respond to questions?" Mr. Kanjorski asked. Vollmer replied that it was the position of the Commission and that “the answer is no.” The SEC announced Vollmer would "leave the Commission and return to the private sector," just 14 days after making the claim.
External links
- Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments, Congressional Research Service, April 16, 2008