Season Two Research Files
Episode Seven
2:00pm-3:00pm
EXECUTIVE PRIVILEGE IN TIMES OF CRISIS
Although the Constitution does not expressly mention executive privilege, Presidents have long held that the principle of separation of powers implies that the Executive Branch has a concession to resist particular intrusions by Congress and the judiciary. This allows the President to invoke certain unchecked powers.
The history of democratic governments, from the ancient republics of Greece and Rome to the modern states that have replaced earlier totalitarian governments, show that governing by committees, or legislative bodies, never works in times of crisis. Fortunately, our Founders were aware of this when they designed our system. While our constitution contains no provision for "emergency" or "crisis" situations, such a provision is not necessary. The U.S. Supreme Court made clear in Ex Parte Milligan following the Civil War that "the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence." Past presidents -- principally Abraham Lincoln, Woodrow Wilson, and Franklin Roosevelt -- by exercising their powers in time of emergency, have expanded their authority as necessary to meet emergencies they faced.
Such Presidential privileges also apply to requests for information. In 1796, President George Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. Eleven years later, the issue of executive privilege arose in court. Counsel for Aaron Burr, on trial for treason, asked the court to issue an order requiring the production of documents and other tangible items against President Thomas Jefferson that would exonerate Burr. Jefferson complied with the Supreme Court's order to disclose the papers, but continued to deny the authority of the court to issue it, insisting that his compliance was voluntary.
Presidents often assert executive privilege even if the information or documents sought are not matters of national security. They argue that some degree of confidentiality is necessary for the Executive Branch to function effectively. Key advisers will hesitate to speak frankly if they must worry that what they say will eventually become a matter of public record. The Supreme Court considered this argument in the 1974 case of United States v. Nixon when a grand jury issued a subpoena to President Richard Nixon requiring that he produce Oval Office tapes and various written records relevant to the Watergate criminal case. Nixon resisted on grounds of executive privilege. The Court backed the President's claim, but concluded that the executive privilege is not absolute.
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