You won’t find it mentioned anywhere in the Constitution of the United States but Presidents as far back as George Washington have claimed to have it.

Basically, the claim of “executive privilege” exempts the Executive Branch of the US Government from having to provide evidence in cases. It also allows the President not to disclose information to congressional or judiciary proceedings. In the past, most claims of executive privilege were invoked to protect secret military or diplomatic operations or to protect the confidentiality of conversations between the President and members of the Cabinet or close aides.

Here’s some examples of how executive privilege has been used in the past…

Let’s go all the way back to 1796 and George Washington. The House of Representatives requested that Washington turn over documents related to the recent signing of the Jay Treaty with England. Washington refused their request on the grounds that is was the Senate authority to negotiate the ratification of treaties and that the House had no legal rights to the documents. He did however, turn the documents over to the Senate.

Another sticky situation arose during the presidency of Thomas Jefferson. That episode set a precedent that is still in use today. It seems that during the trial of Aaron Burr for treason, his lawyers thought that Jefferson was in possession of documents that might clear him. They petitioned the courts to have Jefferson turn over any evidence that he might have that might exonerate Burr. Jefferson refused on the grounds that the evidence might endanger the public safety. The arguments went ‘round and ‘round until Chief Justice John Marshall finally ordered Jefferson to produce any evidence he might have. Marshall reasoned that the Sixth Amendment (rights of the accused to due process) did not exclude the President. He further stated that the court would decide whether or not the evidence would indeed endanger the safety of the public. Eventually Jefferson complied with the court but insisted that his participation was “voluntary”. This set the pattern that would be used. President Bill Clinton used similar tactics when he “volunteered” to appear before Kenneth Starr’s grand jury rather than simply answer the subpoena.

Probably the most famous instance of the claim of executive privilege came during the Nixon Administration. This time however, the claim did not involve matters of national security or sensitive diplomatic negotiations. It involved criminal charges against members of his administration in the Watergate case. A grand jury issued a subpoena to the President requiring that he turn over tapes and written records relevant to the case. Nixon refused on the grounds of executive privilege.

The case went to the Supreme Court and while the court recognized the need for protection of communication between high ranking government officials, they determined that executive privilege did not extend to this case and ordered Nixon to turn over the tapes and written records. It took a full two weeks for Nixon to comply (God knows what might have happened to the evidence during that time). Four days after he turned over the evidence, he resigned the presidency.

Does executive privilege extend to the Vice President? I guess we're gonna find out. The recent threat of the Comptroller General to sue Dick Cheney over matters involving the National Energy Policy Development Group raises some thorny legal questions. I believe that Mr. Cheney has stated the he will invoke his right of executive privilege should the case proceed.

First of all, the Constitution provides that as long as the president is in good health, that the Vice President holds no executive function. The Vice President’s role is limited to legislative matters and the all important job of presiding over and breaking ties in the Senate. Following that path of reasoning, there can be no executive privilege. Since there is no precedent for the Court to follow, it ought to be very interesting. Should the case ever go to trial, the lawyers for both sides are gonna have a field day.

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