In light of the continuing abuses of executive privilege we have seen over and over in the GW administration, and, to be fair, pretty much every president since Nixon with the exception of Carter has abused this so called "privilege"-and I didn't want to hijack the other thread regarding GWs recent use of this "privilege"

Answer the poll questions, and, please explain the needl or lack of need, of executive privilege, and if you believe it has been abused by heads of states.

Please explain the constitutional basis for this, considering it is not specifically mentioned in the consitution.

DEBATE:

Do we need an amendment to revoke "executive privilege"?

If yes to an amendment- is it neccesary?

First let us get the facts straight. The only two Presidents to invoke executive privilege since Nicon are Clinton and Bush. Bush has used it a whole two times. Hardly calls for an amendment. If and when a impassable breach occurs between the executive and congressional branches the courts can decide the issue.

Um- I have no idea where you got that info- Reagan used it on the Superfund thing with Gorsuch:

http://www.law.com/jsp/article.jsp?id=1181898350474

The Reagan White House claimed executive privilege, and the fight began. The House held Burford in contempt, but when it referred the case for criminal prosecution, then-D.C. U.S. Attorney Stanley Harris refused to act. Instead, he filed suit against the House, alleging that the subpoena violated the Constitution. The suit was eventually thrown out, but that left Levitas back at the negotiating table with Fielding, who was in his first run as White House counsel.

http://writ.news.findlaw.com/dean/20070323.html

Indeed, Reagan's Attorney General, William French Smith had the nerve to issue a memorandum opinion expressly relying on U.S. v Nixon -- the famous Nixon tapes case. In the language quoted by French, the Supreme Court concluded: "The expectation of a President to the confidentiality of his conversations and correspondence … has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."

Though I would say that Reagan didn't misuse it to the same degree as Nixon or GW- that he certainly did USE it. In fact- Reagan really REVIVED it from under Nixon's own interpretations:


http://www.law.duke.edu/shell/cite.pl?52+Duke+L.+J.+403

The most important modern articulation of executive privilege standards was the Reagan administration's executive privilege memorandum.6 On November 4, 1982, President Ronald Reagan issued an executive privilege memorandum to heads of executive departments and agencies. The Reagan procedures were generally similar to those in a 1969 Nixon executive privilege memorandum.7 For example, President Reagan's guidelines affirmed the administration policy "to comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch."8 The memorandum reaffirmed the need for "confidentiality of some communications,"9 and added that executive privilege would be used "only in the most compelling circumstances, and only after careful review demonstrate[d] that assertion of the [*pg 406] privilege [was] necessary."10 Finally, the memorandum stated that "executive privilege [would] not be invoked without specific Presidential authorization."11

The Reagan memorandum nonetheless developed clearer procedures than had existed before. All congressional requests for information would be accommodated unless "compliance raise[d] a substantial question of executive privilege."12

He did- however- waive executive privlege at one point- so I kind of get your point.

OH_ and BTW- Eisenhower used it, as did both Thomas Jefforson and Goerge Washington.


But what I see, is GW just using it very, very often, by comparison, of any president, ever. And it highlights how dangerous this power has become in the hands of a person like GW.

ESPECIALLY in light of how he has stacked the courts with his lackeys, and there seems to be no seperation between the supreme court majority and the executive branch at this time.

Do we need an amendment to revoke "executive privilege"?

No. We would only need a court decision in favor of revoking it. Being that it is an interpretation of the Constitution that allows for executive privilege, it would only need a Supreme Court interpretation to establish that no such privilege exists. That would, of course, completely overturn US v Nixon. I think a court decision would be necessary in regards to the current alleged abuse of executive privilege. I do agree that it would be difficult with the current Supreme Court makeup.

So- would the legislative branch be able to overturn the idea of executive privilege?

I mean- would they be able to make a law that "fixed" that issue?

Is executive privilege a legal construct that is even needed?

Why would the president even need this "privilege" in order to run the exucutive branch?

I can see no example in history where this has been needed really, to run goverment. I believe even Washington's case- there was no need for that rule to be invoked that really made the executive branch ineffective in our system had it not been there.

They could certainly try. It would end up in court and the constitutional question would be asked. Either way, you're looking at creating a court precedent to establish it.



Sure.



I think there is some merit to protecting some information between members of the Executive Branch. The President should be able to consult with advisors and have those conversations secret. However, I think the power should be limited. Executive Privilege shouldn't be abused.

Do we need an amendment to revoke "executive privilege"?
Yes, an Amendment would be necessary, as any historian of the Constitution would tell you. One of the flaws of the Articles of Confederation was the weak executive. That flaw was explicitly addressed in the Constitution. The President does not work for Congress, is not appointed by Congress, and doesn't have to kiss Congress's tuchus every time he wants to do something.

If yes to an amendment- is it neccesary?
Not simply "no", but "heck no!" To retain the balance and separation of powers, it would be necessary to impose the same limitations on the other branches. Judicial deliberations, the give and take behind the scenes of the Courts, would have to be open to all. Ditto for Congressional activities. Every back room deal, every discussion regarding anything would be fodder for hostile Presidents and contrarian judges.

methinks I'll add that to my "things I'd do if I were Prez" list. Start demanding Congressional records on everything they do...

If we are to continue to consider ourselves "free" we ABOSLUTLEY need to re-visit the power of the executive branch. Consider this- in no case since Lyndon Johnson has executive privilege been used for ANYTHING but to cover up the wrong doing of the executive- which seems to be the ONLY need for executive privilege- a way to hide wrongdoing- and that is all.

There is absolutely 0 need for executive privilege, and I believe it was a fundamental mistake on the founding fathers part not to further riegn in the executive power.

We now have the "imperial president" model based on non-specified but upheld by court powers of the executive branch:

http://en.wikipedia.org/wiki/Imperial_Presidency

The President doesn't work for congress- sure- I can agree with that- but he IS answerable to ALL the poeple of the US, NOT just Haliburton -

GW has done one good thing in his presidency- shown us the need to riegn in the power of the executive branch. We need to hog-tie his ability to make war (we can thank Lyndon Johnson for that one) We need to make him directly answerable, under pain of death, to all subpoenas of congress, based on a majority plus one floor vote, with no way to block the vote before the full congress.

congress/legislative branches are much more self limiting due to it's size and the fact that they are elected and all ideologies are usually represented.

the executive branch has become far too powerful- heck just look at the use of the word "czar" when we make a new beurocracy.

Richard Nixon, of course, really got the ball rolling on the "imperial presidency" model, using "national security" as a cloak for his wrongdoing (gee, sounds like I should have said "GW Bush")

The bottom line is, I am pretty comfortable if the executive branch's power is cut in about half, and the president should be forced to sit for any subpoena, and should not be allowed Fifth amendment privileges.

I am also quite comfortable if the executive branch DOES have to answer to legislative branches quite often, simply because the legislative branches are more answerable to the poeple by thier very size and make up.

Let us look at post WWII Presidential elections

1948 Incumbant party won
1952 Incumbant party lost
1956 Incumbant party won
1960 Incumbant party lost
1964 Incumbant party won
1968 Incumbant party lost
1972 Incumbant party lost
1976 Incumbant party lost
1980 Incumbant party lost
1984 Incumbant party won
1988 Incumbant party won
1992 Incumbant party lost
1996 Incumbant party won
2000 Incumbant party lost
2004 Incumbant party won

It is much easier to throw out a incumbant president than an incumbant representative. The President is the only candidate who is answerable to all the people of the United States in an election. An incumbant representative is hard to defeat. Representative districts are also subject to gerymandering. The executive branch switches parties much more often than Congress.

There may have been an incumbent parties, but there was no incumbent president running in:

1960
1968
1988
2000

The only incumbent presidents we've booted since 1948 were:

Ford - 1976, (and he was never elected)
Carter - 1980,
George H. W. Bush - 1992.

Truman chose not to run for a third term. He was the last person not prohibited by Amendment XXII from running for another term. Kennedy died in office and Johnson chose not to run and Nixon resigned.

BTW: I nulled my vote on this question. I think we may need to reform executive privilege or more sharply define it without revoking it.

I wonder why Johnson and Truman chose not to run? The fact is the parties set agendas and the incumbant party has lost 8 out of 15 elections in the post WWII period. In what percentage of congressional elections has congress changed hands? Truman, like Johnson, had not completed two full terms.

I replied to what you wrote deng, not what you intended to write.

The answers may not be as simple as you think deng. Truman had all but served two full terms. Roosevelt took office for his 4th term on January 20, 1945 and died less than three months later on April 12. Because the XXII Amendment didn't include Truman, he could have run forever. Truman, however, was 68-years-old in 1952. He would have been 69 in May 1953 - about the same age as Reagan was when he entered office. He had sufferd under the weight of the presidency for all but two full terms. I doubt Truman would have run again regardless of polls or circumstances.

Lyndon Johnson left office a broken man. His poll numbers were never as low as Truman's or Bush's have been over a long period of time. Johnson died a mere five years after leaving office. He had a history of heart trouble and I think he knew the strain of the presidency would kill him before he finished another term.

David McCullough has a fine biography of Truman and presidential historian, Robert Dallek, has an acclaimed two volume set on Johnson, if you would care to explore beneath the surface.

Actually- it is not the incumbancy that is the issue for me- it is the number of poeple in office- incumbant or no- rarely has a party had total free riegn in both houses without splits, even within the party itself, over a number of issues. It is a self limitiing body basically- because there is no central power in one person, but the power is dispersed over a large surface, so to speak.

You simply can't have an "imperial congress" by design.

However- you can have presidents with no real feeling of a need for personal liberties- like, oh, most presidents since Teddy Roosevelt.

It seems that most modern presidents really don't like thier power constricted- they always want more.

The Presidencies from Nixon on, with the exception of Carter, have done thier darndest to find away to increase the power of the presidency.

I am not sure that having a president as simply a figurehead is not even a bad idea.

The two questions are synonymous; if something is "necessary", isn't it also "needed"? Because there were two questions instead of one, I'll answer as if the first question is asking "If we were to rescind executive privilege, would a Constitutional amendment be required?" and as if the second were asking "Should executive privilege be rescinded?"

Do we need an amendment to revoke "executive privilege"?

During the Jefferson administration, the Marshall Court ruled that executive privilege was necessary, but wasn't absolute, so the Judiciary could mediate in rare cases to determine whether claims to privilege were legitimate. However, that ruling has never been used, because one side or the other has ultimately blinked before it has come to a court-mediated showdown. (more)

To completely overrule executive privilege, the Supreme Court would have to come to the conclusion that the Constitution does not protect the separation of powers and does not intend the three branches of government to be co-equal. If we ever get a Supreme Court willing to make such a ruling, they're the type willing to amend by fiat, so exective power will be the least of our worries, considering the only practical checks on the Supreme Court are resignation or death followed by Presidential appointment and Senate advice/consent.

A Supreme Court willing to overrule the separation of powers is probably also willing to make itself a de facto Congress and President, too. So, we'd better hope that we never get such an unwise, power-hungry Supreme Court. Instead, if we the people decide we must rescind the privilege that keeps the Executive and Legislative branches separate and in balance, we'd better do so through an amendment that makes clear which other separation of powers remain intact.

If yes to an amendment- is it neccesary?

No-- in fact, it would be quite unwise, and would throw the fundamental understanding of Constitutional law completely out of whack. Why? Congress is supposed to have as much Constitutional authority over the President as the President has over Congress, as specifically outlined through the system of checks and balances. There are large swaths of the Executive branch over which Congress has "oversight" because Congress enacted those portions of the bureaucracy into existence, and therefore has the power to revoke or reorganize them, to differing degrees. However, because the President and Vice President are Constitution-level officers on par with Congress, Congress has no power over them that isn't directly written into the Constitution; and similarly, the President has no power over Congress except those granted by the Constitution.

If Congress could investigate the President willy-nilly without substantiated impeachment-level allegations, then the President could also order the DOJ to investigate Congress and the Supreme Court on a whim, and force them to reveal everything done in secret under threat of perjury charges; or, just harrass them into compliance by having them tailed by the FBI and arrested for jaywalking, loitering, failing to yield right-of-way, etc. So, the baseline is that without some substantial allegation of specific criminal behavior, the Executive branch can't investigate Constituionally-created officials of the other branches, and vice versa. But like any other investigation, once an investigation starts, it's possible to explore evidence of other crimes discovered along the way, including cover-up crimes like Clinton's perjury in the Whitewater-Jones-Lewinski affairs.

Due to the low ratings of the current President and the even lower ratings of Congress, I'm predicting Clinton will retake the White House and Republicans will retake Congress by 2008 or 2010. Revoke executive privilege, and Clinton II will be served papers shortly after her first steps back into the White House concerning her involvement with Whitewater, Travelgate, her book deals, her campaign aberrations, etc., and it will just snowball into a major mess as every tiny mis-step gets rolled into impeachment charges. She's no Teflon Bill-- something's going to stick. Or, they might use the Kucinich scheme and try to impeach Clinton II's Veep, so that a Republican Speaker of the House will ascend to the Presidency.

Such dragnet politics never do the country any good. Neither does eroding the Constitutional balance and separation of powers until the President is nothing more than a second Speaker of the House, without any power.

The Founders were far more worried about a runaway Parliament than they were about a runaway limited Executive. Although the final draft of the Declaration blamed the Crown for mistreatment of coloniists, if you study the specific allegations, they were all acts of a democratically-elected British Parliament, and his precursors to the Declaration didn't mind calling out the Parliament directly. In A Summary View of the Rights of British America, a draft of a letter to King George begging him to reign in Parliament, Jefferson blames on Parliament many of the same grievances he will later blame on the King in the Declaration:


In a defense of the Declaration, Jefferson notes that even though the Crown hadn't overturned an act of Parliament in about 3 centuries (longer than the U.S. has even existed to date), Jefferson thought it legitimate to blame the King for acts of Parliament because the power to veto acts of parliament still theoretically existed. (sources) In reality, it was just easier to get colonists, who considered themselves Englishmen, to rally against one unpopular monarch than the whole of the British people represented by Parliament.

Let me reply to the condenscending tripe. My original point is that history shows that it is much easier to change the party leadership in the executive branch than in the legislative branch. Both Truman (as BOF confesses) and Johnson were in political hot water. The fact is the Democrats lost the Presidency in 68 and 52. Notice the word party after incumbant in my original post.

Deng- what you also fail to realize here is that even though the Dems "owned" majorities in both houses for about 40 years, they where nowhere near as monolithic or ideology driven as the republican takeover in 94. Dems bucked Democratic presidents, something not really even seen in the current crop of republicans post 94. There was no "11th commandment" of "thou shalt not speak ill of another republican" equivilent in the Dems. The 68 convention really, really showed the deep divisions in the dem party.

The Dems didin't mind bucking the president- and the republicans seem to be very afraid to do this. - in fact, I think the republican part would be very, very well served to ditch this type of loyalty for loyalties sake.

But Seamus makes very good points, and has of course, pointed out what geniuses the founding fathers were. But I don't think I would be so against doing away with the "strong and equal executive" really, outside of allowing him veto power.

power is simply been shown to be too concentrated into one person's hand. Perhaps even a majority-minority dual presidents, that can veto the executive privilege.

GW has shown how bad it can be when you have a president that really doesn't care for the constitution, but only solidifying power for his buddies.

I didn't know I had been to confession, but a concession may have been in play.

The point is the losses were caused by numerous factors. I don't think anyone could have beaten WWII hero, Dwight D. Eisenhower in 1952 or 1956 - certainly not Adlai E. Stevenson. I'm just grateful it wasn't Douglas MacArthur.

I do think Robert Kennedy, had he lived, could have taken Nixon down in 1968 - avoiding, at least temporarily - what Arthur M. Schlesinger, Jr. called the Nixon years - The Imperial Presidency.

Let me make this point. The courts are still the arbitrator when the legislative and executive branches collide. Let me make another point, I would bet $20 (I am not a gambler) that the same individuals complaining now about executive privilege never posted a word on this forum, concerning the issue, when Bill Clinton invoked it.

I think you are correct deng. Mike and Jaime were the founders of this forum and the first two members. They didn't join until July, 2002 - after Clinton left office.

Profile Member Numero Uno

One thing that's interesting about the Eisenhower years, is that it is about the last time we had much bipartisan cooperation. According to Dallek, there were times Eisenhower worked better with Sam Rayburn in the House and Lyndon Johnson in the Senate than he did leaders of his own party, Reps. Charles Halleck and Gerald Ford and Sen Everett Dirksen.

BTW: I'm not a gambler either.

Heck, I would have wagered $50 if I had known that. Are their any comments in the history debates concerning Clinton's use of executive privilege?

I don't know deng, but if there are not, I'm sure anyone so inclined could start a thread on this topic. It might be an interesting comparison.

It will be more interesting when the next Democrat President (probably about 2025) invokes it. I have seen no significant difference between the parties on this issue. If you are a Dem you hate it when you got a Repub Preez, Vice-versa when you are a Repub. I think the status quo has worked quite well.

pretty much every president since Nixon with the exception of Carter -


Deng- that was my opening post- I also thoght Bill Clinton abused executive privilege, and so did Reagan, etc.

There definately needs to be some more restraints on this misuse.

I don't believe that we need an amendment to revoke executive privilege. We need a legislative branch with guts and members of both parties who don't hold the executive branch as being above them, like most of them do currently. I lean a lot towards the U.S. vs. Nixon case on this matter. The Supreme Court acknowledged the idea of executive privilege and that the president needs people to tell him things bluntly, without fear of political embarrassment for partisan reasons. At the same time, the privilege isn't "absolute" and the court does have the jurisdiction to determine whether or not the executive privilege argument passes muster. We can't have congress not be able to access white house documents, as that is where the proof is if there is a crime.(Source) Who could argue that the nation would've been harmed with the release of the tapes? I also think the argument is a huge stretch in light of the seriousness of crimes in regards to Pat Tillman's death, the fired prosecutors case, FBI cooperation case with Whitey Bulger, not to mention Clinton's use of it concerning the Lewinsky case. In all of these instances, I seriously doubt that sensitive material would've been dangerous. It's only dangerous to executive branch leaders mingling about how to cover things up.

I can't. Then again, I also can't quite lay my finger on the section that gives Congress the power to subpoena information from the executive branch. So where's that leave us, exactly?



I don't know if there's any way to know that for absolute certain, seeing as how the whole effect of the privilege is to prevent those outside the executive branch from accessing the privileged information. Yes, there's a significant risk that the information can be hidden for ulterior purposes. There's likewise a risk that information concealed for legitimate reasons can be exposed for ulterior purposes. No branch of government is inherently holier than any other.

History has shown SCOTUS is just as likely to keel over as often as Congress does every time the Executive overstates a foreign threat. As it's already been noted, the Supreme Court created an executive privilege even as they gave Nixon's subpoena the green light.

Executive privilege is not mentioned in the Constitution and therefore can't be removed through the amendment process. The amendment would have to be written in a way to create a restriction.


With Washington and SCOTUS (again). "In 1792, the House investigated the staggering defeat of Gen. Arthur St. Clair by Indian forces and concluded that the War Department was particularly responsible because of a lack of adequate supplies provided to the troops. President George Washington concluded that the investigation and the requests for documents and testimony were appropriate exertions of congressional power" (pdf). One year after the Court ruled against Nixon it formalized Congress' power to subpoena the bank records of an anti-war non-profit in Eastland v. United States Servicemen's Funds as "an indispensable ingredient of lawmaking".

So much for arbitration.

The question I was replying to asked for an explanation of the constitutional basis for this practice. It's not there. So if there's an argument to be made for giving the legislative branch something extra that's not listed because of its usefulness to the exercise of their powers, why not something comparable for the executive branch?

I didn't see CR argue for an unheard of legislative power in his opening post. Title II Chapter 6 Section 192 and Title II Chapter 6 Section 194 (passed in 1857) and the 1978 Civil Contempt of the Senate statute deal with congressional subpoenas. The Eastland case hadn't, to my understanding, advanced to the point where Congress invoked 192 when SCOTUS wrote the opinion.


It's not in the Constitution but it's more legitimate than SCOTUS suggesting some vague executive/legislative authority in the Constitution. It's not as if the Executive has never recognized 192 and 194.


Edit: Actually, it looks like Congress' subpeona power was "recognized" well before the 1857 statutes were passed in Anderson v. Dunn.

Actually, had you bothered to read Seamus's link you would know that SCOTUS did not create "an executive privilege even as they gave Nixon's subpoena the green light." The privilege was first asserted by George Washington, not coincidentally, our first President.

I suggest you read the link.

Washington claimed executive privilege. He didn't create it. SCOTUS did that. If being the first president means having special insight into the Constitution then you should accept Congress' subpoena power as Washington also asserted it existed. Washington and SCOTUS' opinions on executive privilege and congressional subpoena power matter if you want to support either theory without legislative backing.

http://news.yahoo.com/s/ap/20071009/ap_on_...tus_cia_lawsuit

The above link shows how badly we need to riegn in Executive powers. The CIA was allowed to kidnap and torture an innocent civilian and no one can hold them accountable because of "state secrets"- though, I am sure, it is simply another cover up- by the same precedent that made it possible for this kind of abuse of power in the first place:

The state secrets privilege arose from a 1953 Supreme Court ruling that allowed the executive branch to keep secret, even from the court, details about a military plane's fatal crash.

Three widows sued to get the accident report after their husbands died aboard a B-29 bomber, but the Air Force refused to release it claiming that the plane was on a secret mission to test new equipment. The high court accepted the argument, but when the report was released decades later there was nothing in it about a secret mission or equipment.


It would be very good to pass some specific laws prohibiting this "privelage".

This is the residual philosophy of an activist conservative Supreme Court that needs to be reigned in, not the executive. United States v. Reynolds (1953) was decided during the height of the Cold War. It turned out, as you probably know, that the government's reluctance to turn over records was a matter of embarrassment, not national security. You can't "reign in" what only exists in the minds of Supreme Court justices. Congress could easily overrule Reynolds without directly mentioning the executive if it wanted to.