What is Executive Privilege?

What is executive privilege? If someone wishes to explain something as being, or not being, covered by the poorly understood doctrine of executive privilege, it ought to be well understood first. To begin, it is not written anywhere in the US Constitution, but has always been respected as a part of Common Law (U.S. Common law is, or was, derived from British Common Law) and is based on court decisions, and opinions developed going back to the frightful events of 1215 in the Runnymede Meadow.

George Washington claimed such a privilege but it was not called “Executive Privilege” until the mid 1950’s when the phrase was coined. But the concept had been used all along by many presidents, and accepted, more or less by our Congresses.

So what is it ?

The idea is that when an executive such as the president is conferring with his adviser or advisers or other high officials about items of national importance that the president is using as a basis for a decision those discussions and the individuals involved might be best kept secret so that political pressures would not taint the truth and usefulness of the information.

Generally the presence of a disinterested party would negate the concept of a private conversation. A trivial subject or one already well known publicly, would also compromise that assumption of necessary secrecy.

How has it usually worked ?

When a committee of Congress requests or subpoenas information as to how a decision was reached and who presented that information, a president might well claim the conversation with and between those advisers to be in the national interest and private.

Almost always either house of congress has accepted that claim. Quite often as a compromise the president will provide all, or enough of the information to selected members of Congress so that they, being above reproach can explain to their peers that the claim is valid. That has worked out fairly well for two hundred and forty years with possibly some exceptions.

Back to the previous comments. So Hunter Biden has absolutely no right to claim excessive privilege and I doubt that he ever tried to do so. Attorney-client privilege, spousal privilege and usually the religious confessional privilege are similar and almost always honored.

Similarly the current president can invoke the privilege but it never has been used to cover up all information passed between all members of an administration.

That is significant due to an important exception. Executive privilege does not and never has been allowed to cover violations of the laws, rules,or regulations, implicit or implied, of this nation, anyway not until the current administration decided to challenge the right of Congressional oversight that is written into the Constitution. But that is another interesting discussion.

Charlie Jensen

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