Thursday, November 13, 2008

Post-Presidency Claims of Executive Privilege

The NYT (Charlie Savage) published an interesting article yesterday anticipating claims of executive privilege by soon-to-be-former Bush adminsitration officials.  (Many thanks to my student Michael Eisnach for the tip.  I previously posted on Bush officials' assertions of executive privilege here.)

The piece traces the practice back to Truman, who, in 1953--after he left office--asserted the privilege against a Congressional subpoena.  (Congress backed down.)  The Court first addressed the privilege for former presidents in 1977 in Nixon v. Administrator of General Services, three years after U.S. v. Nixon

The piece also explores the politics of Congressional investigations into Bush administration practices after Obama takes office.

From the article:

“The Bush administration overstepped in its exertion of executive privilege, and may very well try to continue to shield information from the American people after it leaves office,” said Senator Sheldon Whitehouse, Democrat of Rhode Island, who sits on two committees, Judiciary and Intelligence, that are examining aspects of Mr. Bush’s policies.

Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Gov. Don Siegelman of Alabama, secret legal memorandums from the Justice Department’s Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet E. Miers in the firing of federal prosecutors.

Mr. Bush has used his executive powers to block Congressional requests for executive branch documents and testimony from former aides. But investigators hope that the Obama administration will open the filing cabinets and withdraw assertions of executive privilege that Bush officials have invoked to keep from testifying.

SDS

http://lawprofessors.typepad.com/conlaw/2008/11/post-presidency.html

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