In June of this year, Attorney General Jeff Sessions appeared before a Senate Intelligence Committee and cited executive privilege when asked questions about his meetings with the President.
What is executive privilege? Wikipedia defines it as “the power of the President of the U. S. and other members of the executive branch of the United States Government to resist certain subpoenas and other interventions by the legislative and judiciary branches of government in pursuit of information or personnel relating to the executive branch, The power of Congress or federal courts to obtain such information is not mentioned explicitly in the U. S. Constitution”. The U. S. Supreme Court has confirmed this privilege may qualify as an element of the separation of powers doctrine, “derived from the supremacy of the executive branch”. Usually, presidents, congresses and courts historically attempt to avoid confrontations through compromise and agreements.
The earliest use of the privilege was in 1796 by President George Washington. President Thomas Jefferson utilized the privilege in 1809 during the treason trial of Aaron Burr. In the Cold War era Eisenhower invoked the privilege during the 1954 Army-McCarthy hearings. Eisenhower described the privilege simply as: “Any man who testifies as to the advice he gave me won’t be working for me that night”.
The Supreme Court “addressed executive privilege in United States v Nixon in 1974 involving the demand by Watergate special prosecutor Archibald Cox”. The Clinton administration invoked the privilege fourteen times and the George W. Bush administration on six occasions. President Obama asserted executive privilege to withhold certain documents related to the Operation Fast and Furious controversy; and also in a lawsuit against Fannie Mae and Freddie Mac in which it did not disclose nearly 11,000 documents in the discovery process.
Jim Geraghty of National Review wrote in his column, The Morning Jolt, on June 13, 2017: “Why do we have executive privilege? …The theory behind this unique presidential power is simple: the president needs the best advice possible, and this means both the president and his advisers need to be able to speak to each other and discuss matters of state with confidentiality. Sometimes the right course of action is not the popular one; those who speak to the president may not want their actual perspective revealed to the public….A president and his team need to deliberate and sort through many options when it comes to big decisions. This is why the stream of leaks from the White House is so damaging; how would you like to offer an idea in confidence in an Oval Office meeting only to read about it in the Washington Post the next day?. Presidents and advisers have the right and reason to think that their conservations in the Oval Office with staff are private until they authorize discussing them.”