What Is Executive Privilege?

Tyler Durden's picture

There has been much talk today about Obama's use of the "executive privilege" yet few are familiar with the details of this relatively unknown presidential option. The AP sheds much needed light on this practice: perhaps the most fitting, to the constitutional expert president, is that the "privilege" isn't in the Constitution nor has been clearly defined by the courts. In other words - just the kind of loophole that one needs to mask the fact that the very person tasked with imposing justice is himself guilty of performing just the opposite. Yet Obama has only used it once (so far) during his tenure as president. Dubya used it six times, Bush Sr used it once also. Slick Willie however takes the cake with 14 cases of executive privilege during his 8 years on top.

From the AP:

Presidents dating back to George Washington have claimed a murky power to keep the inner workings of their administrations secret from Congress.

That authority — known as executive privilege — isn't in the Constitution. It hasn't been clearly defined by the courts. Yet invoking it has proven effective for presidents determined to keep witnesses or documents away from congressional investigators.

President Barack Obama is the latest to assert the privilege: He refused Wednesday to turn over some Justice Department documents about a botched anti-smuggling operation that allowed hundreds of guns sold in Arizona to end up in Mexico. Because of the standoff, the House Government Oversight and Reform Committee then voted to hold Attorney General Eric Holder in contempt of Congress. The committee's recommendation next would go to the full House for a vote.

A look, in question and answer form, at executive privilege and the fuzzy state of the law regarding showdowns between Congress and a president:

Q: How can a president shrug off a subpoena from a congressional committee?

A: Presidents say they should be free to engage in private decision-making with their advisers without fearing how their words or internal memos might look to Congress or the public. Several presidents have argued that this authority also extends to the work of high-level agency officials, even if they weren't communicating with the president or White House about such work.

Q: Where does the idea of executive privilege come from?

A: It's a principle based on the constitutionally mandated separation of powers — the idea that the executive branch, Congress and the courts operate independently of each other.

The concept of executive privilege dates at least to 1792, when Congress was probing a disastrous battle against American Indians that cost the lives of hundreds of U.S. soldiers. President George Washington and his Cabinet decided the president had the right to refuse to turn over some documents if disclosing them would harm the public. In the end, Washington gave lawmakers what they sought. But the idea of executive privilege took root.

Q: Didn't the Supreme Court settle the issue when it ordered President Richard Nixon to hand over the Watergate tapes recorded in the White House?

A: Not really. The court ordered Nixon to surrender the tapes in that case — a criminal investigation. But the justices also found a constitutional basis for claims of executive privilege, leaving the door open for presidents to cite it in future clashes with Congress.

Q: Do presidents claim executive privilege often?

A: Most reach for it sparingly. Wednesday was Obama's first time in his 3 1/2 years in office. His predecessor, George W. Bush, cited it six times in eight years. Bush's father invoked it only once in his single term.

The administration of President Bill Clinton, who faced investigation of his Whitewater land deals and then a sex-and-lies scandal, asserted executive privilege 14 times. Some of those claims were kept quiet and quickly dropped, however.

Q: What comes next for Obama?

A: Probably more negotiation. In the past, presidents and lawmakers have been loath to let an executive privilege fight escalate into a court battle.

Q: Why not go to court to settle questions about executive privilege once and for all?

A: There's too much risk. Presidents worry that if they lose, courts will take away a valuable tool and weaken the power of the office. If the lawmakers lose, they could permanently weaken Congress' subpoena power when it investigates executive branch blunders.

Q: What if the White House and Congress can't reach a compromise?

A: The next step is a contempt of Congress vote in the full Republican-controlled House. Full House approval would send the case to the local U.S. attorney for enforcement. Who is that U.S. attorney's boss? Holder and, ultimately, Obama, who appointed him.

That's why the Justice Department traditionally declines to pursue such criminal contempt of Congress cases.

Q: Is there something else Congress could do?

A: If, as history suggests, the Justice Department won't prosecute a criminal case against Holder, the House could hire its own lawyer and file a civil lawsuit in federal court in hopes of winning an order for Holder to turn over the documents. But in addition to the risk of losing, a court fight certainly would be long and drawn out, making that an unappealing option.

The Democratic-controlled House filed suit in 2008 seeking to compel testimony from a former White House counsel to George W. Bush. The lawsuit was dropped a year and a half later, after Bush's term ended and a newly elected Congress had been seated. Congress did get some of the documents it sought, however.

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Executive priviledge is when you're told to fuck off... like we do in soviet russia.

i say, you do.  you say, i don't do.

Manthong's picture

The longer we go without reclaiming this type of American ideology the less of a chance we have to keep even the little that is left of the Constitutional United States.


..and course he was talking about countering the Soviet Communist threat, but he might as well have been talking about the current iterations of US Administrations and State. And the press he describes… does not exist except in the cause of defending socialism..

krispkritter's picture

Executive Privilege is simply Obammy stating "...I'll never have to say I'm sorry..."


The absurdities continue unabated...can't wait for NO-vember.

4horse's picture

Executive Privilege is simply  .  .  .

                                                      something like this . . .

David Sassoon was born in Baghdad, Iran in 1792. His father, Saleh Sassoon, was a wealthy banker and the treasurer to Ahmet Pasha, the governor of Baghdad. (Thus making him the "court Jew" ? a highly influential position.) In 1829 Ahmet was overthrown due to corruption and the Sassoon family fled to Bombay, India. This was the strategic trade route to interior India and the gateway to the Far East. In a brief time the British government granted Sassoon "monopoly rights" to all manufacture of cotton goods, silk and most important of all ? Opium ? then the most addictive drug in the world!

The Jewish Encyclopedia of 1905, states that Sassoon expanded his opium trade into China and Japan. He placed his eight sons in charge of the various major opium exchanges in China. According to the 1944 Jewish Encyclopedia: "He employed only Jews in his business, and wherever he sent them he built synagogues and schools for them. He imported whole families of fellow Jews...and put them to work."

Sassoon's sons were busy pushing this mind?destroying drug in Canton, China. Between 1830 ? 1831 they trafficked 18,956 chests of opium earning millions of dollars. Part of the profits went to Queen Victoria and the British government. In the year 1836 the trade increased to over 30,000 chests and drug addiction in coastal cities became endemic. In 1839, the Manchu Emperor ordered that it be stopped. He named the Commissioner of Canton, Lin Tse?hsu, to lead a campaign against opium.

Lin seized 2,000 chests of Sassoon opium and threw it into the river. An outraged David Sassoon demanded that Great Britain retaliate. Thus, the Opium Wars began with the British Army fighting as mercenaries of the Sassoon's. They attacked cities and blockaded ports. The Chinese Army, decimated by 10 years of rampant opium addiction, proved no match for the British Army. The war ended in 1839 with the signing of "The Treaty of Nanking."

This included provisions especially designed to guarantee the Sassoon's the right to enslave an entire population with opium. The "peace treaty" included these provisions: "1) Full legalization of the opium trade in China, 2) compensation from the opium stockpiles confiscated by Lin of 2 million pounds, 3) territorial sovereignty for the British Crown over several designated offshore islands.

. . . Thus, China not only had to pay Sassoon the cost of his dumped opium but reimburse England an unheard sum of 21 million pounds for the cost of the war! This gave the Sassoon's monopoly rights to distribute opium in port cities. However, even this was not good enough and Sassoon demanded the right to sell opium throughout the nation . . .

. . . In the new "Peace Treaty" of October 25, 1860, the British were assigned rights to vastly expanded opium trade covering seven?eights of China, which brought in over 20 million pounds in 1864 alone. In that year, the Sassoon's imported 58,681 chests of opium and by 1880 it had skyrocketed to 105,508 chests making the Sassoon's the richest Jews in the world. England was given the Hong Kong peninsula as a colony and large sections of Amoy, Canton, Foochow, Ningpo and Shanghai. The Sassoon's were now licensing opium dens in each British occupied area with large fees being collected by their Jewish agents. Sassoon would not allow any other race to engage in "the Jews business."


                                                        leading to something like this  .  .  .

The Russell, Coolidge, DeLeino, Forbes and Perkins families became fabulously rich smuggling Opium aboard their speedy Clipper ships into China. In 1820 Samuel Russell bought out the Perkins syndicate and ran the Opium smuggling operation with his partner Warren DeLeino Jr. who was the grandfather of President Franklin Delano Roosevelt.

Britain had finally found a commodity that China would take – Opium. Imported from India, just a few chests at first, and then thousands. When the Chinese authorities tried to stop the Opium trade, the British sent in their Gunboats. After nearly 20 years of turmoil the treaty of Tien-Tsin in 1858 not only allowed Opium to be imported, but handed over China's ports and all her International trade to Western control.

After the war, Opium poured into China on an even greater scale and her Emperors were powerless to stop it.

In 1842, the British stole Hong Kong from China in an Opium drug-deal called the treaty of Nanking. The Russell family who controlled the US arm of the Rothschild drug smuggling operation, set up the Skull and Bones fraternity at Yale University. America's big money families formed the fraternity's inner power circle. Taft, Russell, Schiff, Haremon, Bush, Warburg, Guggenheim, Rockefeller, Stemson, Weighouser, Vanderbilt, Goodyear and Pillsbury were all members.

These families intermarried over the generations to form America's big money aristocracy. Skull and bones member Alfonso Taft catapulted his son William Taft right into the top job at the White House. President Taft's 17th. Amendment to the US Constitution guaranteed the right of big-money insiders to hand-pick Senators and buy control of the US Senate . . .


                             leading to who knows what totally unforeseen where . . .

Gidas19's picture

Could Mr. Obama use "executive privilege" to conceal a birth certificate?

boogerbently's picture

.....whose "interpretation" of the Constitution?

Killing babies is "constitutional"!

UP Forester's picture

"Privilege is what-fucking-ever I want it to mean, dammit!"

-Official White Horse Souse

bigdumbnugly's picture

"Slick Willie however takes the cake with 14 cases of executive privilege during his 8 years on top."


so you're saying the slickster is quite partial to the missionary style, eh?

i always figured him to be more.... i don't know.... imaginative.

but he did certainly invoke his executive privilege at each drop of a handkerchief.

DaveyJones's picture

Well, it's nothing like the other legal privileges ( spousal, lawyer-client, doctor-patient etc) which over time have been narrowed again and again. This one seems to have no rules, no boundaries and no end in sight. I think it models itself after our debt.

FeralSerf's picture

I think it's the coach gets his pick of the water boys in the showers and everyone has to keep quiet.

Row Well Number 41's picture

Executive Privilege = pleading the 5th = Guilty or why claim it.


Diogenes's picture

Executive privilege = the divine right of kings. You fought a war over this in 1776, kicked Nixon out of office when he tried to claim it.

boogerbently's picture

....then why doesn't b-Hussein-o just "declare" socialism by Executive Privledge?

Animal Cracker's picture

Fuckin aye.  A Democratic Republic and Secrecy are incompatible.


Oh how I long for the day when POTUS getting his dick sucked was the craziest news in DC.  

icanhasbailout's picture

The House could choose to de-fund the Department of Justice entirely, which is its only recourse that needs no permission or cooperation from either a court nor the executive branch.

GernB's picture

I understand the political reasons for not pursuing it, but what ever happened to the sense of obligation to act as a check and balance against the other branches of government. I'm not that concerned about this case, both parties have abused "executive priveledge." I'm more concerned about the pattern in all branches of government to overlook instances of over-reach and violations of the constitution, such that the consitution becomes meaningless because nobody will ever push back and say "hey you can't do that it's not constitutional."

We have become a nation where government has any power it cares to sieze, and since each party wants all the power they can get neither one ever tries to reign in the power of the other side.

Bollixed's picture

" I'm more concerned about the pattern in all branches of government to overlook instances of over-reach and violations of the constitution, such that the consitution becomes meaningless"

This also bothers me, so I was doing a little research and apparently as long as we as a country stay in an armed conflict, or declare War on something (drugs, poverty, midgets), the Constitution is put on vacation, replaced with a version of Martial Law. Apparently this started with Lincoln.

Now I'm beginning to understand why we have one conflict after another. I'm aware this isn't advertised by TPTB as it would cause quite a ruckus among the sheeple.

But if it is true, albiet not openly touted, it does explain a lot about the never ending power grabs that Martial Law Lite seems to allow these days.

kinetik's picture

The whole concept sickens me. My childhood American idealism is dying day by day. And I'm Canadian.

PulpCutter's picture

Ike is actually the winner, with 44 times, not Clinton with 14.

This is Obama's first such use; the TeaBaggers are hyperventilating.

TMT's picture

Big fucking deal how many times its been used and by whom.  The fact is our government is growing more corrupt by the day (as it has been for about 80 years).


Since you're an Obama lover please tell me what exactly you are - a gay, opressed "minority", an illegal, or food-stamper?  Which is it?

uno's picture

slight correction - which ones are you

Dr. Engali's picture

Yeah sure..... the "teabaggers " are all up in arms because Holder tried an end around to undermine the second amendment and people got killed. Nothing to be alarmed about. Please go on defending the criminal.
I don't care how many times a past president evoked " executive privilege". One time is too many.

A Lunatic's picture

They broke the law, forced others to break the law, and are now preventing the truth from coming out that justice may prevail. Invoking "executive privilege" to cover up criminal acts is a fucking abomination..........All in the pursuit of an anti gun agenda. How I hope there is a Hell.

nmewn's picture

"...the TeaBaggers are hyperventilating."

lol...and of course, as usual the exact opposite is the truth. If anyone is hyperventilating its Holder, O'Barry and MSM psychopants.

Top DOJ officials meeting in Mexico >>>on the very same day as Holder is sending a letter to Congress<<< denying any knowlege of F&F is...well, breath takingly stupid.

"So imagine my surprise when I discover in the documents slid under my door late that Friday night that while in Mexico, Assistant Attorney General Lanny Breuer proposed letting guns cross the border.

His proposal came at the same time the Department was preparing to send its letter to me denying that ATF ever does the very thing he was proposing.

In a February 4, 2011 email, the Justice Department attaché in Mexico City wrote to a number of officials at the Justice Department:
AAG Breuer proposed allowing straw purchasers to cross into Mexico so [the Secretariat of Public Security] can arrest and [the Attorney General of Mexico] can prosecute and convict.  Such coordinated operations between the US and Mexico may send a strong message to arms traffickers.”


It appears, the ghosts of hundreds of Mexican citizens, Brian Terry and possibly Jamie Zapata are casting very VERY long shadows...for ghosts.


As an aside...what piqued my interest in this whole dooby doo...was that asshat president of Mexico (Calderon), standing up in MY HOUSE OF REPRESENTATIVES...and had the balls to discuss MY RIGHTS as a free man.

That's right, I'm saying he knew about the Fast & Furious operation as well and was a party to it.

valley chick's picture

and sometimes precedent needs to be set..go for it...no comparison between slick Willie and his cigars and Fast & Furious that cost a US citizen his life.

PulpCutter's picture

Or with Cheney, who lied us into a war for his oil buddies, and intentionally 'outed' a CIA agent.

TMT's picture

You rabid liberal statist clown.  First, it wasn't Cheney.  Second, Plame was a desk jockey.

Your bullshit liberal talking points will garner more support over at moveon or somewhere else.

Ron Paul 2012.

uno's picture

send W and Cheney to Iraq for war crimes, send O to Libya & Pakistan for crimes against humanity and Slick Willy to Serbia

TheObsoleteMan's picture

Nice for you to mention Serbia, no one else even notices what a stab in the back that one was. Here was a country trying to hold on to lands which had been theirs for centuries against an invading hoard of muslims. The NATO gangsters supported the muslims without ever saying why. Put serbian leaders in phoney show trials and killed the rest. The russians just sat back and watched their cousins get slaughtered. All they would have done is "sold" the serbs the latest SAM systems to give them a chance against the air cap of NATO and it might have ended differantly.

uno's picture

Russia finally understood after Libya was taken out.  I know about the importance of Kosovo to Serbia, the Albanians came to it after WW2, after 10+ childern for a couple generations some corrupt Albanians wanted all the resources for themselves.  At the time Slick Willy (aka cigar dick) was catching flack about the Chinese bribery scam, Serbia was defenseless enough to distract attention with a lapdog MSM; bomb the water treatment plants, electricity plants, a couple schools, leave depleted uranium for generations and walk away as a MSM and Western European darling.

Overfed's picture

Why do statists try to use the crimes that Bush, etc., got away with to justify the crimes of the O'bomb-a administration? Nobody here is happy about the shit that Bush and Co. pulled, nor are we happy with the shit that Zero and Co. are pulling. Douche.

Paul Atreides's picture

More garbage from the AP. CBC has been re-posting all their crappy propaganda articles on Syria lately was thinking of sending in a complaint. It's obvious from the comments that more then half of Canadians know whats going on and bash the article outright, which makes me somewhat more optimistic on Canada's future ability to wake up and smell the bullshit.

In relation to the article this is just a side ring act, nothing will come of this, the media will shift attention away from Holder soon, just more WWF wrestling for the irradiated masses.

Dr. Engali's picture

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness

Is it me or am I missing something In the first sentence ?

Cognitive Dissonance's picture

You got it right. But it just states an opinion. As "W" said, it's just a piece of paper.

Dr. Engali's picture

W's comment was about the constitution , but it's my guess he had contempt for both documents.

uno's picture

and this gem

Justice Ginsburg: “I Would Not Look to the U.S. Constitution”

Hulk's picture

Thats one piece of paper we should actually leverage...

Tuffmug's picture

The only truth that is self-evident is that Jefferson was a master BS artist.

Ms. Erable's picture

We can now postulate another truth that is self-evident: you're an ignorant moron.

WakeUpPeeeeeople's picture

"We hold these truths to be self-evident, that all men are created equal,"


After equal, insert "but some men are more equal than others"

skepticCarl's picture

Obama is a lock for re-election.  Expect more government, and more Military Industrial Complex. The bankers like that, so that's what we'll get.

Winston Smith 2009's picture

What is Executive Privilege?  Simple - the power of Kings.

LongSoupLine's picture

I don't know, but is that photo supposed to be SCROTUS using his "privledge"?

Pancho Villa's picture

I always thought that Executive Privilege was the right of CEO's to collect hundreds of millions in salary and bonuses in spite of (or even because of) their companies losing huge amounts of money and even going bankrupt.

lemonobrien's picture

the privilege to get orally copulated by an intern and not have it defined as a sexual act; but a standard greeting instead.

lakecity55's picture

Is that a photo of Dick O'Bama cupping a crack pipe by the headline?

q99x2's picture

Good thing CIA agents aren't allowed to smoke crack when they are President.