executive privilege

Credit: Washington Times

Executive privilege is defined as the exemption that the executive branch of government grants them or their officers, which exempt them from having to provide evidence. This rule specifically addresses the involvement of the president in court ruling and whether or not, he is at liberty of disclosing information when faced with inquiries from the Congress or the judiciary branch of government. According to the sentiments provided by Rozell & Sollenberger (2015), the reasons given for this act is to protect the operations of the military or the diplomatic officers who may have with them sensitive information. There have been controversies over whether or not the executive privilege is contained in the Constitution. However, research has proved that it is an implied power and nowhere in the constitution does it indicate its existence. Most courts have rejected the claims as to the existence of the executive privilege but have remained keen to support it especially if a president is brought up on charges. Nell (2015) provides an example of such which was the case against the United States and Nixon. The claims provided by the executive privilege were weak. However, the case against President Nixon led to his impeachment and the many claims that the White House had made were dropped since it was clear that the court would not uphold them for this case.

Mark Rozell defined executive privilege to be a legitimate power. The only condition was that it would only work if it was used for all the right purposes. Rozell & Sollenberger (2015) compared it to the other powers of the presidents by claiming that it was limited by the needs of the other branches of government. This issue of executive privilege has its limits, and they lay within the democratic principle, which insists that there be openness in any government. In short, Rozell meant to establish that throughout history and the very many presidential eras, the use of executive privilege has been subject to the various balancing tests, which define whether it is valid or invalid. Rozell believes that there should be no claim of executive privilege by a president in office just because they or another high-ranking official at the White House has mentioned the terms “national security” or “ongoing criminal investigation” together with executive privilege. For their claim to be justified, a president must have his claim balanced with the needs of other things as well as meet the criterion that needs to satisfy the standards of acceptability. Rozell & Sollenberger (2015) concludes by stating that the dispute over executive privilege cannot be resolved using statutes and constitutional jargon, it is only through the normal ebb and politics flow which have been provided for in a system that has evidence of power separation.

On the other hand, the counterargument that David Gray Adler makes concerning executive privilege is that it not provided for in the constitution. According to him, the people responsible for framing the Constitution did not see the need to have the executive privilege and more so, giving more power to the president to allow him to be more superior than any other private citizen. Adler believes that the arguments made for the upholding of executive privilege are built on a misunderstanding. The two clauses that are in conflict, in this case, are the commander-in-chief clause and the power clause as dictated in the constitution. It also touches on justice a little bit. In light of this, Adler was at the forefront of rejecting what Clinton had declared as the use of self-defense to use as a strategy to attack Iraq according to Rozell (2015). They were to use missiles and since the power of self-defense instituted that it was pivoted on an invasion of the United States, this made the President’s authority over foreign lands uncalled for and in this case, wrong. Adler rejected the views presented by Clinton because he believed that the inversion of the power of war resolution that turned into an acknowledgment of the right of the president to invade Haiti was in complete violation of the resolution. This resolution was put forward in an attempt to prevent the over excessive use of military power by the president. In addition to this, he also rejected the reliance of Clinton on NATO, the UN charters and resolutions as part of his war-making authorities. Extra-constitutional bodies can in no way replace the authority and command of the Congress.

Most of the critics that oppose the executive privilege provisions continue to argue that the government and its secrecy does not promote democracy and in the long run, leads to mismanagement and the abuse of power. In this case, they do not overstate their case, which is given by the following example. Machiavelli and Hobbes are supporters of the executive privilege, and they note that the framers of the constitution had one goal in mind, and it was to preserve the liberty of individuals by restricting the amount of power they gave democracies. What was not on their agenda when framing the constitution was entirely disrupting the executive power in general (Kelly, Winfred, and Herman, 1991). Any form of power can be used to do either the right thing or the wrong thing. Inside the constitution, there are institutional mechanisms, which have been put in place so that they can create a balancing force to deter any abuse of power. Thomas Hobbes, who was for the executive privilege, wrote an article called Leviathan. This article was intended to show how sovereign power can be granted authority so that it could be able to overcome the civil strife. In his article, he noted that most individuals sacrificed most of their liberties to sovereign power in return for comfort assured to them by their absolute dictator (Rozell, 2015). In this case, the sovereign power has all the authority but uses it to do good and promote peace and coexistence in the community.

Many critics base their arguments on the basis of non-disclosure outweighing any other evil in the society. This results from the failure to disclose any relevant and sensitive information. Those that are true believers of balancing the scale expect that the balance should tips the scale in favor of honesty and openness. For example, one of the people opposed to executive privilege, Stuart Symington, assures us that the risk of failure by the executive branch policies and the programs they are expected to reveal to the Congress is more appealing to these parties  than revealing information that may be detrimental to the health of one or more democratic systems through their failure to provide the truth. Raoul Berger is another critic who adds that the failure to expose such important information or the truth about these democracies is the building block towards achieving high rates of corruption and mal-version. These are just some of the views from top critics concerning the executive privilege topic (Rozell, 2015).

According to my thoughts, I believe that there are no constitutional grounds for executive privilege and that the president and any other officer should not be considered of a higher power than the private citizens under the constitution. Furthermore, if we were to give breathing space to such conventions, would we not constitute the repetition of a criminal act, the very thing that we are trying to rid ourselves of in the first place? An executive privilege is an anti-ethical act in relation to democracy. According to Nell (2015), it acts as a cloak that prevents the people and authority involved from any form of accountability. The only way that the dilemma that faces us, concerning the executive privilege can be resolved is through the use of democratic accountability so that it can foster openness in place for all government activities.


Rozell J. M., (2015) “Executive Privilege: The Dilemma of Secrecy and Democratic Accountability,” Vol 2: pp 8-27

Kelly, A. H., Winfred A. H., and Herman B,(1991), “The American Constitution: Its Origins And Development,” Volume II. (7th Edition). New York: W.W. Norton & Company.

Nell L., (2015), “Executive Privilege,” Columbia Electronic encyclopedia, 6th Edition (2): 7-17

Rozell J. M., Sollenberger M. A.,(2015), “Presidents: Executive Privilege,” Encyclopedia of Public Administration and Public Policy, Third edition, Taylor and Francis, Pp 1-5

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