On March 30, 1796, President George Washington issued a letter to the United States House of Representatives, detailing his refusal to provide documents concerning his executive order to John Jay in negotiation of the Jay Treaty with Great Britain. Citing that, “the nature of foreign negotiations requires caution, and their success must often depend on secrecy,”(Goldman) Washington claimed executive privilege. Executive privilege is not a power given to the President under Article II of the United States Constitution. Since 1796, many presidents have claimed the power of executive privilege, including Presidents Truman, Eisenhower, and Clinton. It was not until 1974 however, in U.S. v Nixon that the general authority of the executive to withhold information was confirmed validated. Because some parts of the ruling did not apply in the Nixon case itself, the court’s decision and statement on executive privilege is quite ambiguous. The case lays out the power of the United States President to withhold documents and information he may deem necessary for the protection of the nation and its interests. This case has led the American people and political analysts to question under which circumstances can the President overstep the judicial system.
The use of executive privilege by the United States President allows him to evade subpeona duces tectum, a latin legal term meaning the order to present either oneself or evidence concerning a case to the court. Executive privilege has traditionally been used by the President when certain documents, under the possession or oversight of the president, are requested by either the Supreme Court or Congress. In most cases, those documents which may be concealed under executive privilege pertain to private communications between the President himself and either informants or diplomats. An example of this can be seen in the most recent use of executive privilege by President Barrak Obama in the Holder Contempt case.
Executive privilege is necessary for the efficient execution of the responsibilities of the President of the United States under the Constitution. The power has evolved to be used under the following circumstances: The secrecy needed to gain immediate and beneficial information from informants who might be worried about prosecution otherwise, the protection of the American people and their interests both private and public, and the confidentiality necessary to negotiate treaties and agreements with foreign diplomats both at home and abroad. It is necessary however, that executive privilege be remembered and guarded against as a privilege, and not a presidential right. That privilege has been claimed more than fourty times combined by the three most recent presidents, George W. Bush, Bill Clinton, and Barrak Obama. These uses have resulted in a loss of faith by the American people in not only the Presidency, but also, the judicial system which is supposed to hold the executive branch accountable. I will assert that this loss of faith is in large part due to a contextual idea of executive privilege in terms of the Watergate scandal under the Nixon administration. Because of the US. v. Nixon case, any issue concerning executive privilege is interpreted in either pre or post Nixon terms. By extracting this publicly sensitized reaction, a case can be made for the need of executive privilege for the above reasons.
The use of executive privilege does indeed cause issues between the branches of governments. The checks and balances given under the Constitution allow the judicial court system to hold the president accountable as a citizen and as the head of the executive branch. However, the president must have the ability to effectively communicate and protect his office if he is to guard the interests of the country. The autonomy of the executive branch, specifically the President himself, is the ultimate question to be dealt with. Under which circumstances is executive privilege needed? And in an era of a growing public media, and readily available information, both biased and unbiased, how is it used appropriately? Finally, in the context of the most recent use of Executive Privilege in the case of operation Fast and Furious, have recent presidents acted using this privilege to defend themselves, or to effectively secure those ends which need not be exposed in the overly open environment Americans find themselves in?
<Lilllian Goldman Law Library. Connecticut. 2008.>