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The concept of executive privilege is not mentioned in the United States Constitution, but some consider 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 it can be invoked 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.
1) President George W. Bush first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno, the scandal involving Federal Bureau of Investigation (FBI) misuse of mob informants Whitey Bulger and Stephen Flemmi in Boston, and Justice Department deliberations about President Bill Clinton's fund-raising tactics, in December 2001.
2) 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).
3) 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:
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.
4) On July 9, 2007, Bush again invoked executive privilege to block a congressional subpoena requiring the testimony of Sara M. Taylor and Harriet E. Miers. Further, White House counsel Fred 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.
Originally posted by Keyhole
Executive Privilege has now been invoked 4 times by the President. In the past only 5 other Presidents have ever invoked Executive Privilege, and then only one time each!
n 1996, executive privilege was invoked as the basis for refusing to turn over 2,000 documents to the House Government Reform and Oversight Committee as part of the investigation of the Filegate scandal.
During the campaign of that same year, the Clinton administration invoked executive privilege to prevent Congress from obtaining a memo written by the FBI Director and Drug Enforcement Administration Chief in which Clinton was criticized for failing to effectively deal with illicit drug use and narcotics smuggling.
In June of 1997, the Clinton administration engaged in an executive privilege battle with Independent Counsel Donald Smaltz, who was investigating former Agriculture Secretary Mike Espy. Smaltz sought 84 documents that had been withheld by the Clinton administration. The documents pertained to Espy's acceptance of bribes.
WASHINGTON (May 5) -- In a setback for President Bill Clinton, a federal judge has ruled that White House aides may not claim executive privilege before the Whitewater grand jury looking into sex-and-perjury allegations against the president.
President Clinton on Thursday claimed executive privilege
and refused a congressional subpoena seeking details of
his clemency offer to 16 Puerto Rican terrorists.
"Pursuant to the Constitution and the separation-of-powers
doctrine, the president's authority to grant clemency is not
subject to legislative oversight," White House Deputy Counsel
Cheryl Mills wrote to Rep. Dan Burton, Indiana Republican
and chairman of the House Committee on Government
The closest the courts have come to extending the privilege to such discussions was in the 1993 decision of the U.S. Court of Appeals for the D.C. Circuit in Association of American Physicians and Surgeons, Inc. v. Hillary Clinton. That case raised the question whether the Federal Advisory Committee Act ("FACA") applied to the health-care-reform panel chaired by then-First Lady Hillary Clinton. And that question, in turn, depended on whether the First Lady is, or is not, an officer or employee of the government.
In 1998, President Bill Clinton became the first President since Nixon to assert executive privilege and lose in court, when a Federal judge ruled 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," independent counsel Kenneth W. Starr said such a privilege "must give way" and evidence "must be turned over" to prosecutors if it is relevant to an investigation.