Executive privilege is an undefined right of the Office of the President of the United States which allows a president to assert that the release of material or personal testimony would impact the operation of the presidency. The privilege has been used as far back as George Washington, yet no such right appears in the U.S. Constitution or Bill of Rights.

Executive privilege is often asserted where the release of information would threaten national security; however use of the executive privilege has come under greater scrutiny since the Watergate days.

The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a “sufficient showing” that the “Presidential material” is “essential to the justice of the case.” Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch’s national security concerns.

Eric Holder requests executive privilege

In general, presidents will use executive privilege at the onset of a confrontation with Congress to prevent or hinder subpoena of material held by the White House. Often presidents will assert executive privilege to put on record their reasoning that the material requested is protected White House communication and then deliver most of the documents being requested by Congress.

The prototypical case of executive privilege is when the release of information has direct bearing on foreign affairs or military operations such that disclosure could have a negative impact on national security. Another reason often cited is the protection of communications between the president and his advisors. In every case, invocation of executive privilege requires the knowledge and involvement of the office of the president.

After the release of thousands of pages of documents from the Justice Department over the past 11 months and in response to the Congress preparing to issue a Contempt of Congress charge against the Attorney General, president Obama invoked executive privilege to forestall turning over tens of thousands of additional pages remaining from the original subpoena issued by the House Oversight and Government Reform Committee.

What President Obama has done by using asserting executive privilege is placed himself front-and-center in the Project Gunrunner/Fast and Furious scandal.

House Speaker John Boehner’s spokesman said invoking executive privilege “implies” the White House was involved in the operation itself or the cover-up.

Republican lawmakers, who so far have been given 7,600 documents, are looking specifically for information from February 2011 and beyond that follow a Justice Department letter which erroneously claimed the department did not allow guns to “walk” across the Mexico border.

One thing is certain: Mr. Obama considers something in the documents requested by Congress averse to his re-election and the move is purely an attempt to delay release till after November. What should give people pause is that if the president is using executive privilege to hide information that would be embarrassing to the White House or worse yet conceals a crime he’s participating in a cover-up and the key lesson of Watergate: is it’s not the crime; it’s the cover-up. Time to go back to school Mr. Obama.


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