Monday, December 5, 2011

Executive Privilege


By Charles A. Morse
web posted May 21, 2001

The claim of "executive privilege" was first invoked by President Dwight D. Eisenhower, May 17, 1954, during the Army-McCarthy congressional hearings. Assistant Secretary of the Army John G. Adams, during testimony, refused to answer a question from Sen. Stewart Symington.

Adams explained, to the astonishment of all in attendance, that he had received a direct order from the White House not to answer. The request was for Adams to divulge the nature of a Jan. 21 meeting he had attended with Attorney General Herbert Brownell and others. The allegation was that at this meeting, a plan had been hatched to undermine an effort by Sen. Joseph McCarthy to investigate the U.S.Army for communists.

McCarthy, in his attempt to investigate the Army, had been exercising his time honored constitutional responsibility as a U.S.Senator. Congress is supposed to oversee and investigate possible wrongdoing in government agencies, including the Army. This had been routine practice. If Eisenhower was plotting to undermine McCarthy's committee, he could have been charged with obstruction, and, theoretically, impeached from office. The invocation of "executive privilege," by Eisenhower would cripple Congress and seriously threaten the delicate system of checks and balances. The truth concerning that meeting will never be known.

Dwight D. Eisenhower

Eisenhower explained his position in a letter to the committee where he claimed that it was "not in the public interest" for high officials to have their confidential communications made public." He asserted that "this principle must be maintained regardless of who would benefit by such disclosure." The White House, by fiat, had ordered that no information with regard to this meeting would be released to Congress. This unprecedented act immediately placed the President, and all agencies of the executive branch, above the law. The President would, henceforth, be immune from investigation and prosecution under the guise of protecting national security. What constituted national security would be defined by the President.

Arthur Herman points out in his recent biography of Joseph McCarthy that Congressmen from both parties were outraged by this Presidential power grab. Eisenhower would proceed to invoke executive privilege more than 40 times during the hearings. McCarthy stated that "any President can, by an executive order, keep the facts from the American people." Sen. Everett Dirksen stated "I do not see how this committee sitting as investigators and judges and jurors could finally make a finding and make a report with the proof incomplete." Sen. John McClellen stated "I am pointing out that the effect of this order...stops these hearings...you are never going to get to the whole truth."

Investigative reporter Clark Mollenhoff, in his Pulitzer prize book on this subject, "Washington Cover-Up" stated that "a truly thorough investigation of the executive branch can be conducted only in the Congress." Mollenhoff wrote;

"It seems to me that this doctrine would be set forth in the administration of a President who would be regarded as one of the mildest chief executives...I was not worried that President Eisenhower would try to use it as a tool for totalitarianism. But with this doctrine in force a man who was inclined toward totalitarian methods might readily administer the laws as he pleased."

The doctrine of "executive privilege," yet to be challenged at the Supreme Court, has led to egregious abuses of power by subsequent Presidents and administrations. The two most glaring examples of this abuse was when executive privilege was invoked by President Richard Nixon during Watergate, and by President Bill Clinton at various points in his corrupt administration. This breach in the ability of Congress to investigate the executive branch has lead to an increasingly dictatorial presidency and the growth of unaccountability of agencies of government. Congress has been hog tied ever since while executive power grows unchecked.

Chuck Morse is the author of Thunder out of Boston which is available at Amazon.com.

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