Where in the US Constitution does Executive Privilege come from?

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Due to Obama's recent use of Executive Privilege to protect him and his attorney general in the recent Fast and Furious scandal investigation, ONCE AGAIN, I am wondering where the term came from. I remember when I first heard the term when it first came up during the Clinton/Lewinsky scandal. I hated the fact that Republicans were savagely and rabidly pursuing Clinton for such a petty thing as that sex scandal but the term executive privilege made me nervous and scared me a little especially when I couldn't find its justification in the US Constitution. I asked this question before on Abuzz and several other forums.

To the best of my ability, the term is not directly stated in the US Constitution. So which clause did President Jefferson pull this self empowerment term from? I'm assuming it's somewhere in the second article and perhaps even the second section (am I close?).... Is it something taken from the Magna Carta? A concept borrowed from a US state constitution? How does/did/would a US president argue that the term exists and in fact is a Constitutional concept to the United States Supreme Court?

Contextual help for nonUSers:
The Presidential section of the US Constitution:
http://www.law.cornell.edu/constitution/articleii

Executive Privilege: A Long (And Sometimes Sordid) History
http://www.wbur.org/npr/155442846/executive-privilege-a-long-and-sometimes-sordid-history

I can see where the president can confide with his underlings and secretaries in the directly quoted text below but there is no mention or hint at the president's right to secrecy in the following constitutional text:

Quote:

[He] may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices....

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Type: Discussion • Score: 8 • Views: 4,488 • Replies: 16

[+3] - Joe Nation - 06/22/2012Yup. Whichever party the claimant of EP belongs to says "It's to allow the advisers of the President to speak freely. " The opposing party is always outraged. meh. Joe(Go...

@tsarstepan,

Isn’t it a sort of custom like royal prerogative

http://onelook.com/?loc=rescb&refclue=executive%20privilege&w=royal+prerogative

1 Reply

@dalehileman,

No.
It has to do with the Separation of Powers, the branches check and balance each other. The President cannot command that a Bill be brought to a vote, Congress cannot decide to rifle through all the papers in the West Wing.

Joe(meanwhile the USSC cannot dis-band Congress. )Nation

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@tsarstepan,

tsarstepan wrote:

Where in the US Constitution does Executive Privilege come from?

The concept of executive privilege, let alone the term, is nowhere to be found in the US constitution.

tsarstepan wrote:

Due to Obama's recent use of Executive Privilege to protect him and his attorney general in the recent Fast and Furious scandal investigation, ONCE AGAIN, I am wondering where the term came from.

To my knowledge, executive privilege was first asserted by president Nixon. Congress had demanded that Nixon release the Watergate tapes. Nixon refused, claiming executive privilege. A unanimous Supreme Court decided against Nixon, but did acknowledge that a qualified privilege exists. I don't know of any subsequent Supreme-Court decisions that have clarified the precise extent of the privilege. But that doesn't mean there haven't been any. I, too, am concerned about a creeping escalation of unchecked presidential power under this doctrine.

1 Reply

@Thomas,

I wouldn't worry too much.
If (I mperial Presidency) George W. Bush wasn't able to pull it off even with the help of Cheney, it ain't going to happen. Executive Privilege has been with us since Jefferson. Every President has either invoked it or worked out a compromise between the Office of the President and Whatever Committee of Congress was seeking records, testimony or both.

I thought George W. Bush would invoke it when he was asked to testify before Congress regarding the attacks of September 11th, but he didn't. He worked out a deal where he would know each and every question that was going to be asked, he still sweated through the whole process like he was the head of a Mexican Miracle Cure Bureau being interviewed by Mike Wallace.

Issa is a creep who should be in prison for various frauds. If I were him, I would keep my head down.....but come on, idiot, expose yourself.

Joe(No fishing)Nation

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@tsarstepan,

Jon Stewart explains Executive Privilege

Glocks and Spiels

1 Reply

@Irishk,

Yup.
Whichever party the claimant of EP belongs to says
"It's to allow the advisers of the President to speak freely. "
The opposing party is always outraged.

meh.

Joe(Go Fish)Nation

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@tsarstepan,

In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial arms of government.

http://www.allconstitutionallaws.com/

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

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What's your take on Obama circumventing existing law using "prosecutorial discretion"?

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Unlike executive privilege, prosecutorial discretion is as old as the institution of prosecutors. If you don't like how the prosecutor-in-chief is using his discretion, elect new Senators (check) and have them appoint an attorney-general who better suits your taste (to be done --- Holder is already leaving).

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@tsarstepan,

There is no mention of him being debarred from exercising discretion as he (or she) sees it.

1 Reply

@Setanta,

Setanta wrote:

There is no mention of him being debarred from exercising discretion as he (or she) sees it.

I wasn't asking if he should be allowed discretion or not, I was just asking if there was an explicit phrase in the constitution. I remember when the phrase came up under the Clinton administration. They too said it was a constitutional power granted to the president. But to be a constitutional power, doesn't it not need to be literally written out in the text of the Constitution? Either directly or indirectly written into the text. Remember... we don't base our laws on the unwritten Magna Carta where someone can say... "Well, it's unwritten and thusly you can't disprove ________ isn't in the document text."

1 Reply

@tsarstepan,

This is out my league, however, this is the first time the President has exerted this authority. According to Wiki, Clinton exerted it 16 times, Bush six and Obama has once.

Also, from what I understand, wasn't there under cover guys used in that operation who might be in danger if their names are revealed?

1 Reply

@revelette2,

revelette2 wrote:

This is out my league, however, this is the first time the President has exerted this authority. According to Wiki, Clinton exerted it 16 times, Bush six and Obama has once.

Also, from what I understand, wasn't there under cover guys used in that operation who might be in danger if their names are revealed?

That Wikipedia is inaccurate since the first president to invoke executive privilege was Richard Nixon. I remember he used it regarding deleting some of his infamous inoffice recordings. And I think I remember he used it to fire the attorney-general during the beginning investigations of the Watergate Scandal.

1 Reply

@tsarstepan,

What is your point? Are you saying the other info is inaccurate as well?

Fine, I'll find another source, easy enough to do.

http://www.washingtonpost.com/rw/2010-2019/WashingtonPost/2012/06/21/National-Politics/Graphics/w-privilege.jpg

source

1 Reply

@revelette2,

revelette2 wrote:

What is your point? Are you saying the other info is inaccurate as well?

My point was your post that stated the following...

Quote:

This is out my league, however, this is the first time the President has exerted this authority. According to Wiki, Clinton exerted it 16 times, Bush six and Obama has once.

is inaccurate as even your graph suggests that executive privilege was used before Clinton. I was just stating that the term existed before Clinton. Personally, I was unaware that LBJ and JFK used the legal term.

1 Reply

@tsarstepan,

Oh, sorry, I didn't catch that.

0 Replies

Where in the US Constitution does Executive Privilege come from?

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