My understanding is that executive privilege first came about when Chief Justice Burger invented it so that he could deny it to Nixon. U.S. v. Nixon, 418 U.S. 683 (1974); see also Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) (refusing to entertain a suit attempting to enjoin Pres. Andrew Johnson’s enforcement of the Reconstruction Act).
Hey! No fair citing yourself. But in any case, I suppose you’re right: I failed to read the second half of the sentence. That is, the doctrine may be old, but it was not acknowledged by the SCOTUS until the 1970s.
Right. Also, there are parts of it that have never really been controversial (state secrets, for example). In particular, the deliberative privilege has been controversial, especially the breadth of that privilege (does it apply to VP? does it apply to conversations with unelected consultants and members of private industry?)
I certainly agree that the privilege belongs to the president, and it’s to him (or her) to waive it as seems appropriate. The privilege doesn’t belong to George W. Bush, in other words; it belongs to the President of the United States.
But so far as Bush is president for a set time, doesn’t privilege apply throughout that time to some extent for people in his employ? It seems to me that any president can only make decisions on whether to waive executive privilege when it comes to his own advisers in his own term.
Otherwise, those advisers have very little protection indeed - as it is, the privilege that covers their consultations with the president is a limited one and can be deemed an invalid claim if a court decides other considerations win out.
Other forms of privilege seems worth comparing here - attorney-client privilege cannot be broken if, say, another attorney takes on the case, right?
That reasoning seems right. But are there any actual instances in which one president has waived executive privilege regarding information the former president insisted on invoking the privilege over?
Except that it doesn’t say that. It says they’re “willing” to arrest him. That’s CYA politispeak so that later, after the Big Bad Wolf has blown hot air on them and scared them to death, they can say, “Well, we were willing to do it, but then X happened and gosh, it just wasn’t possible/practical/wouldn’t-have-mattered.”
That’s an inapposite comparison, because the privilege belongs to the client, not the lawyer. Eight attorneys can be involved; the privilege can be waived only by the client.
Now, your objection is well-taken insofar as Bush’s advisers vs. the next president’s advisers. But there are two factors that cut the other way. First, every adviser knows that it’s for the President, not him, to decide to reveal or conceal the communication given. If Bush decides it’s in the public interest to reveal the energy meetings agenda, for example, his energy advisers cannot complain.
The second factor is MAD - mutual assured destruction. Sure, President Obama could waive the privilege protecting Bush’s discussions. But then President Santorum could waive Obama’s privilege for anything controversial that occurred during his term. There’s a vested interest in respecting the privilege that will act to lessen the chance of casual piercing of the privilege.
I do agree that in general, presidents act to protect executive branch interests. This has been the pattern for over two hundred years and applies to presidents of many different parties - many of which no longer exist.
In part because this is true, though, I don’t know that there is any case of a president waiving privilege for a claim made by a previous president - and I don’t know if executive privilege is even thought of in this way by those that invoke it.
I’ve read some stuff written by Presidential advisors (Attorney General and Office of Legal Counsel) that cover this IIRC. I won’t be able to get at it until the weekend though.
But Cf.,
Jack M. Beermann, Presidential Power in Transitions, 83 B.U.L. Rev. 947 (2003)
That’s a good point - it kind of reinforces my earlier point about the executive branch protecting its inherent power.
Note that this new claim by Bush did not change any previous claims by his predecessor - though it is interesting to note that in an earlier pardon controversy Clinton had also invoked the privilege.
I’m of the view that had things gone to court in the pardon matter executive privilege claims couldn’t have been sustained - there were just too many questions about the pardons. But these things take either a court to resolve or negotiation between the branches.
Jonathan Turley, law professor, Columbia University, says Congress can get around Executive privilege by asserting they’re investigating a Federal Crime (Warrantless Wire Tapping.
Also says,
…the Supreme Court ruled in United States v. Nixon that, “where the President asserts only a generalized need for confidentiality, [executive privilege] must yield to the interests of the government and defendants in a criminal prosecution.”
Yeah, well, they’d have to assert this to someone. A court would serve nicely. And said court would also serve as a handy place to hear any individual executive privilege claims, as in the case of documents a judge may rule on the validity of that claim after an in camera review. In the case of testimony the claims can be evaluated and ruled on as they come up.