One of the biggest news stories of the past few days has been President Obama’s use of the executive privilege to help shield Attorney General Eric Holder from Congressional investigation over the “Fast and Furious” operation. This operation, enacted by the Bureau of Alcohol, Tobacco, and Firearms resulted in the loss of nearly 2,000 automatic weapons that have since ended up in the hands of Mexican drug cartel soldiers. While the story behind the Fast and Furious operation is intriguing by itself, the purpose of this article is to explain the history behind the notion of an “executive privilege”.
What is an Executive Privilege?
An executive privilege is a presidential power that when enacted allows the President and other members of the executive branch to be protected from subpoenas and other kinds of investigation by the Judicial and Legislative branches. A president may enact this privilege whenever he so chooses, and over the course of modern politics, several presidents have chosen to use the executive privilege to hide anything from treaty negotiations to internal executive documents from inquiry.
How did the Executive Privilege start?
The origins of the executive privilege can be traced back to President George Washington, who refused to acquiesce to a request from the House of Representatives that they be apprised of the negotiations of the Jay Treaty between the United States and Great Britain in 1796. Washington stated that his reasoning for this was that the Constitution stated that it was the responsibility of the Senate to negotiate treaties, not the House of Representatives; therefore the House had no need to know the treaty negotiations. Executive Privilege was used by several other early presidents, including Jefferson during the Aaron Burr trial and Jackson in his dispute with Senator Henry Clay. The Supreme Court officially affirmed Executive Privilege in the U.S. vs. Nixon case in 1974.
Modern Executive Privilege
Use of the executive privilege has expanded greatly in the last 20 years. President Clinton used his executive privilege 14 times during his time in office, most famously during the Monica Lewinsky case. President George W. Bush used executive privilege 6 times, most notably to protect his advisor Karl Rove from being called in to testify over the firing of federal prosecutors scandal in 2007. President Obama used executive privilege for the first time this past week.
Photo Courtesy of Pat Dollard