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executive privilege

executive privilege - Adam Kelly November 2007 Government...

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Adam Kelly November 2007 Government 101 Executive Privilege 1
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While the Constitution nowhere expressly mentions executive privilege, presidents throughout history (from Washington to George W. Bush) have invoked this reserve power when asked to give Congress, the courts, or private parties information or records which have been requested or subpoenaed, or when they order government witnesses not to testify before Congress 1 . This highly controversial issue is both based on the idea that the constitutional principle of separation of powers implies that the Executive Branch has a privilege to resist certain encroachments by Congress and the judiciary, including some requests for information 2 and the obvious notion that it would be difficult for the White House to conduct policy-making if the private communications between the President and aides to the executive branch (or between aids themselves) were made public 3 . George Washington first used this executive privilege (although the term was actually coined in 1954 when Joseph McCarthy was investigating the Eisenhower administration 4 ) to deny Congress its request to view documents associated with the 1  "C-SPAN Congressional Glossary." Executive Privilege . C-SPAN. 19 Nov 2007  <http://www.c-span.org/guide/congress/glossary/exprivilege.htm>. 2  Dorf, Michael C.. "A BRIEF HISTORY OF EXECUTIVE PRIVILEGE, FROM GEORGE  WASHINGTON THROUGH DICK CHENEY." Findlaw: Legal News and Community  02 Feb  2002 19 Nov 2007 <http://writ.news.findlaw.com/dorf/20020206.html>. 3  Sullivan, Kathleen. "Executive Privilege: The NewsHour with Jim Lehrer Transcript." 24  March 1998. PBS. 19 Nov 2007 <http://www.pbs.org/newshour/bb/white_house/jan- june98/executive_3-24.html>. 4  Hirsen, J.D., Ph.D., James L.. "Executive Privilege: Right or Ruse?." Firstliberties . 1999. 19  Nov 2007 <http://www.firstliberties.com/exec_privilege.html>. 2
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recently adopted Jay Treaty between England and the US. Washington justified withholding the documents from Congress by making direct reference to the constitution, arguing simply that the Senate alone ratifies treaties (thus Congress had no need to see the documents). Washington’s run-in with Congress may have set precedent concerning the “separation of powers” argument for the use of executive
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