Executive Privilege Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Executive privilege is the right granted to the president and executive branch officials that permits them to refuse to release information to Congress, the courts, and the public. Although the U.S. Constitution is not explicit in the provision of this right to the president, presidents have justified its use through the separation of powers doctrine that is inherent in the Constitution and the primacy of the executive branch in certain governmental activities, namely, foreign policy. Scholars believe that the concept of executive privilege is based on common law and derived from the English crown. Thus, “crown privilege,” as it was referred to in England, was commonplace in monarchical systems.

Presidents frequently cite the precedents established by their predecessors in claiming executive privilege. The issue of executive privilege is quite perplexing. First, the American public and press genuinely encourage a strong presidency model. As such, presidential claims to executive privilege may at times be encouraged or implied by America’s conventional support for a strong or activist presidency. Second, even though critical factions exist that challenge an activist president, seldom is there agreement on what is legitimately covered by executive privilege and what is not. Third, the Constitution lacks specificity on the subject, thereby making determinations of the constitutionality of a president’s claim of executive privilege all the more difficult and indeterminate. Fourth, the Supreme Court usually defers to the president. Fifth, claims of executive privilege are not exclusively issues about foreign policy but can encompass domestic policy as well. Furthermore, presidents usually are held to different standards depending on whether the issue is domestic policy or foreign policy. This double standard further aggravates the ambiguity surrounding executive privilege. Sixth, different outlooks on the issue of executive privilege suggest different institutional perspectives. Congress sees challenges to presidential authority as part of its constitutional obligation, while presidents see it as meddling in the affairs of the executive. Either way, these factors contribute to the controversial nature of executive privilege.

Several reasons provide justification for challenging a president’s use of executive privilege. Critics argue that the use of executive privilege lacks a constitutional foundation. The Constitution is silent on the matter and does not explicitly state that the president does or does not have the authority to claim executive privilege. Another argument posed by critics has to do with the intent of the country’s Founders. It is well documented that the Founders had reservations about a strong central government and a strong executive. In particular, they feared that a strong executive or president might transform into a tyrannical leader. Many in opposition to executive privilege view the exercise of power that is not explicitly granted to the president in the Constitution as bordering on abuse of power. According to critics, the unilateral and relatively unchecked nature of claims of executive privilege goes beyond the original intent of the Founders. Others argue that the principles and values that make America unique—open government, democratic society, and the free flow of information—come into question when something antithetical to these values is allowed. Furthermore, for the government to perform as intended, Congress should be fully provided with information about the actions of the executive branch. Last, presidents and their staffs are frequently accused of abusing the privilege. A few presidents and their staffers have invoked executive privilege to conceal illegal activities, cover up embarrassing information, and use it as a tool in maintaining political leverage. This cynical view of executive privilege is founded in the increasing distrust the average American has for government.

Regardless of whether executive privilege is indeed a power that can and should be exercised by the president and his or her staff or whether conditions should be placed on its usage, executive privilege is founded in the precedent established by George Washington and continued by his successors. Washington withheld certain portions of correspondence, which were requested by the Senate, between the secretary of state and the minister of the United States to France because he believed the information was damaging to the national interest. Similarly, Abraham Lincoln refused a congressional request to turn over information related to the arrests of Baltimore police commissioners at Fort McHenry. In 1901, William McKinley refused Congress’s request for information regarding a War Department investigation into the use of Cuban funds. Last, George W. Bush invoked executive privilege and refused to release information regarding Vice President Dick Cheney’s meetings with energy officials. As these examples illustrate, presidents continue to claim executive privilege, regardless of the challenges, in executing their duties.

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