The Law: Executive Privilege: Definition and Standards of Application

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Abstract

Executive privilege is the right of the president and high-level executive branch officials to withhold information from those with compulsory power—Congress and the courts (and, therefore, ultimately the public). Because it is nowhere mentioned in the Constitution and also due to the occasional abuses of that power, executive privilege is controversial. Although few today question the constitutionality of executive privilege, there is considerable debate about its proper scope and limits. This article traces the historical development of the meaning and standards of executive privilege. The purpose is to show that disputes over executive privilege are best resolved through the normal ebb and flow of our separation of powers system and not through some statutory definition or precise court clarification of that power.

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