Executive Privilege

What is executive privilege?

Say you are president, and get information that a missile has been fired and is heading here. You need immediate advice from the Joint Chiefs of Staff on the emergency options available. So you call them in and discuss the options. Those conversations are “privileged” and must be kept secret. We can’t have the world knowing that you and the Joint Chiefs discussed this option or that option – e.g., making a preemptive strike against this country or that country. So, if Congress conducted public hearings and demanded that the Joint Chiefs tell about the discussions, you could properly assert “executive privilege”.

But say, as president, you commit a crime. You may discuss your past crime with your private defense lawyer, and your defense lawyer can’t be forced to testify against you. But that is the attorney/client privilege – that is not “executive privilege”.

Say one of your cabinet members lied under oath before Congress. That is a crime! You, as president, can not cover up the crime by claiming “executive privilege”! If you did, I expect you would be guilty of “obstruction of justice” – another crime.

Holder can’t be forced to testify against himself. However, he can be questioned under Oath by Congress, and if he needs to plead the privilege against self-incrimination, well, so be it.

I don’t know what zero’s motivations are in claiming “executive privilege”: Is he just attempting to protect his lying attorney general? Or, was zero in on this scheme from the beginning? Either way, “executive privilege” wouldn’t apply because executive privilege is restricted to the lawful functions of the President which must, for national security reasons, be kept secret.

So, here is the distinction: If people in the executive branch are carrying out lawful functions, but discussions need to be kept private for national security reasons, then executive privilege applies.

But if they have committed CRIMES, then executive privilege doesn’t apply. But the privilege against self-incrimination does apply.

Let’s hope Congress has the SPINE to do what ought to be done.

PS: If Congress can find any honest person in the AG’s office (well, one of the secretaries might be honest!), Congress may properly require that person to produce the documents and evidence Congress wants. No privilege of any kind would apply there.

Tags: executive privilege, obstruction of justice, privilege against self incrimination

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Replies to This Discussion

Permalink Reply by Land Shark aka Bob E on June 21, 2012 at 1:06pm

Thanks for the timely information.

Permalink Reply by Thomas Angle on June 21, 2012 at 2:36pm

Nice and simple explanation. Thanks

Permalink Reply by Chris Jurrians on June 21, 2012 at 3:39pm

Publius, Thank you for making executive privilege so easy to understand. You do a wonderful job of separating the wheat from the chaff. Please keep up the good work.

Permalink Reply by Diogenes on June 21, 2012 at 5:13pm

Publius in these times I think you would have define what constitutes a crime that would apply to the President. For example, the last two administrations especially, the President either by direct order or by consent have allowed secret actions in so-called defense of the state, such as supplying arms to insurgents or to counter insurgents. Allowing a missile to take a so-called terrorist out which accidently and collaterally kills many others. We know only after the case years later that the CIA helped remove leaders in other countries, and recently, outright torture. There has been many actions committed, in secret, without the approval of Congress, and in which the President was aware, and he counters that as President he has the authority under the Constitution as leader of the military to defend the Country. Rationality is an easy stretch to use that authority proactively. I think we have a runaway situation going that builds on prior precedent.

Now the President's license has been abetted by the Patriot Act, NDAA, and his own Executive Orders. Currently he is in effect, Pro Consul.

Permalink Reply by Thomas Angle on June 21, 2012 at 7:44pm

I believe there is a difference between the a citizen and some foreigner. But in the Fast n Furious case, they where attempting usurp the Constitution.

Permalink Reply by Diogenes on June 21, 2012 at 5:22pm

Perhaps the course should be impeachment but it will never happen.

http://www.renewamerica.com/columns/keyes/120621

Permalink Reply by Publius Huldah on June 21, 2012 at 6:02pm

You can't go wrong by listening to Alan Keyes!

Permalink Reply by Diogenes on June 21, 2012 at 6:19pm

So what happened to Executive Privilege in Obama's case? What crime did he commit?

Permalink Reply by Publius Huldah on June 22, 2012 at 1:08pm

We don't know what crimes zero committed re fast & furious. Apparently he claimed "executive privilege" to cover somebody's misdeeds up.

Permalink Reply by Diogenes on June 21, 2012 at 8:00pm

Publius, this post was entered on the TPN Eligibility forum this evening. It cites Obozzo's actions. Please do not let go

to the ether the license of Presidential Executive Privilege.

rom:http://beforeitsnews.com/story/2290/532/Can_The_President_Rewrite_F...

Andrew P. Napolitano / LewRockwell.com

Here we go again. Is the Constitution merely a guideline to be consulted by those it purports to regulate, or is it really the supreme law of the land? If it is just a guideline, then it is meaningless, as it only will be followed by those in government when it is not an obstacle to their purposes. If it is the supreme law of the land, what do we do when one branch of government seizes power from another and the branch that had its power stolen does nothing about it?

Late last week, President Obama, fresh from a series of revelations that he kills whomever he pleases in foreign lands, that the U.S. military is actually fighting undeclared wars in Somalia and Yemen, and that the CIA is using cyber warfare – computers – to destabilize innocents in Iran, announced that he has rewritten a small portion of federal immigration law so as to accommodate the needs of young immigrants who came to the U.S. as children and remained here. By establishing new rules governing deportation, rules that Congress declined to enact, the president has usurped the power to write federal law from Congress and commandeered it for himself.

Immigrants should not be used as political pawns by the government. When government does that, it violates the natural law. Our rights come from our humanity, and our humanity comes from God. Our rights are natural and integral to us, and they do not vary by virtue of, and cannot be conditioned upon, the place where our mothers were physically located at the time of our births. Federal law violates the natural law when it interferes with whom you invite to your home or employ in your business or to whom you rent your property or with whom you walk the public sidewalks.

When the government restricts freedom of association based on an immutable characteristic of birth – like race, gender or the place of birth – it is engaging in the same type of decision-making that brought us slavery, Jim Crow and other invidious government discrimination. Regrettably, the feds think they can limit human freedom by quota and by geography. And they have done this for base political reasons.

Along comes the president, and he has decided that he can fix some of our immigration woes by rewriting the laws to his liking. Never mind that the Constitution provides that his job is "to take care that the laws be faithfully executed," and that "all legislative power" in the federal government has been granted to Congress. He has chosen to bypass Congress and disregard the Constitution. Can he do this?

There is a valid and constitutional argument to be made that the president may refrain from defending and enforcing laws that he believes are palpably and demonstrably unconstitutional. These arguments go back to Thomas Jefferson, who refused to defend or enforce the Alien and Sedition Acts because, by punishing speech, they directly contradicted the First Amendment. Jefferson argued that when a law contradicts the Constitution, the law must give way because the Constitution is the supreme law of the land and all other laws are inferior and must conform to it. This argument is itself now universally accepted jurisprudence – except by President Obama, who recently and inexplicably questioned the jurisdiction of the Supreme Court to invalidate the Affordable Health Care Act on the basis that it is unconstitutional.

Nevertheless, there is no intellectually honest argument to be made that the president can pick and choose which laws to enforce based on his personal preferences. And it is a profound violation of the Constitution for the president to engage in rewriting the laws. That's what he has done here. He has rewritten federal law.

Only Congress can lay down specifics such as in order to avoid deportation and qualify for a two-year work visa, one must have entered the U.S. prior to age 16 and possess a valid American high school diploma or be a military veteran, as the president now requires. By altering the law in this manner – by constructing the requirements the government will impose – the president has violated his oath to enforce the laws as they are written. His second responsibility in the Constitution (the first is to defend the Constitution) is to enforce federal laws as Congress has written them – hence the employment of the word "faithfully" in the Constitution – not as he wishes them to be.

Congress should have enacted years ago what the president is now doing on his own, because it is unjust to punish children for the behavior of their parents, and it is unjust to restrict freedom based on the place of birth. But this can be remedied only by Congress. If the president can rewrite federal laws that he doesn't like, there is no limit to his power. Then, he will not b

Permalink Reply by Publius Huldah on June 22, 2012 at 1:54pm

I don't trust Andrew Napolitano and I avoid Lew Rockwell. Some of the things Napolitano says sound just great - but then he slips in something which would literally be the end of us. I think he is a WOLF dressed in sheeps' clothing.

He has (and perhaps still does) supported a con con. That would be the end of our Constitution. I do not believe it is possible that Napolitano doesn't know this.

Above, he is calling for Congress to open the floodgates and let everyone in. He asserts that to do otherwise is to violate the "natural" rights of those who wish to come here.

To that lie, I say, "Rubbish!". John Jay points out in Federalist No. 2 (5th para or so), that Providence (that would be God) gave this Country to one connected people with the same ancestors, same language, same religion, same culture, attracted to the same principles of government, and similar in their manners and customs. WE were the kind of People who ratified the Constitution.

For most of our history, we limited the immigrants from non English speaking countries to small numbers so that they would assimilate into OUR culture and learn OUR ways and embrace them. We didn't want hoards of people coming at the same time from 3rd world countries to form permanent separate cultures. We didn't want OUR Country "balkanized". Balkanization never, ever works.

Our Country was based on God's Law and God's model for Civil government. THAT is why we became the greatest country ever. See my latest paper.

The left hates and resents that greatness. So they set out to destroy it. One of the weapons they used was......multiculturalism. The Lie that a Country benefits from having all these diverse cultures in it. Rubbish. All that multiculturalism leads to is the destruction of the host Country.

So! Mexicans are flooding into this Country bringing their criminal culture with them. Mexican culture has always been criminal. There has always been a large ignorant underclass in Mexican culture. They are bringing that criminal mindset and their slavish mentality with them. And their numbers are so huge that they have no reason to assimilate.

Muslims are flooding in. Someone said that in 20 years, there will be enough muslims here to elect the president. As they just did in France.

I don't do demographics, but our Christian culture is being wiped out. It is going on right now.

And Napolitano supports this destruction of our Christian culture which was based on God's Law.

And God NEVER required the Israelites to open their doors to let the pagans in. Instead, God told the Israelites that they were NOT to marry foreign wives. God made provision for aliens to be adopted into the Israelite tribes, but they had to adopt the ways of the Israelites - including accepting and embracing their GOD!

So I think Napolitano is a giant FRAUD. And a bad man. And a curse on us. A pox on him and his poison.

Permalink Reply by Diogenes on June 22, 2012 at 2:39pm

I don't do with Napolitano. I used the article to cite Zero's abrogation of his authority including using the Constitution as a doormat. I am trying to get you focused on the subject of Rxecutive Privilege. In a prior post I submitted a number of examples where the prior and current administration ( I could go back to Reagan ) bypassing Congress's approval. Fast and Furious has been adopted by the President after Holder asked that the issue come under Executive Privilege. Therefore you introduced the topic. Are you going forward with it as it might apply to Zero's action? To help you along, can Zero claim that F&F was emp;oyed in defense of the U.S. and giving no further information?