The Constitutional Council and the Executive Branch: Executive Privilege
Remarks
“Executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.” (Adapted from Wikipedia: http://en.wikipedia.org/wiki/Executive_privilege )
Executive Privilege is irrelevant for the Constitutional Council, but it is still relevant for the rest of the Government. The principal distinction is that the Constitutional Council is charged with ensuring that the government – all of it – is on the up-and-up; the notion the President could hide some of his most special activities even from the Constitutional Council would undermine the whole concept of the Constitutional Council. The Constitutional Council is concerned with ensuring that what is going on in the US Government is Constitutional; the Constitutional Council has no say-so about policy and would overstep its bounds and role if it was involved in using its activities to influence legitimate policy formation or implementation. On the other hand, Executive Privilege allows the President to hold his cards to his chest where sensitive matters, like treaties, are being developed. Executive Privilege safeguards the President’s efforts from the interference from other competing parts of the government that do not bear the President’s responsibility, but might be inclined to interfere for principally parochial reasons. The problem with Executive Privilege is that when the President invokes it there is little recourse to gainsay it, except by a plodding trek through the courts, which can allow the President via legal maneuvering to resist scrutiny for years, thus defeating the effect of checks and balances. The most recent example of this became obvious with Obama’s arbitrary use of Executive Privilege to block Congressional investigation into the Fast & Furious Scandal. At no point in the Congressional investigation of this affair was there any indication of Presidential involvement; and if there were Presidential involvement, that would be just the sort of matter that would be of interest to the Constitutional Council and certainly the Council is not going to allow its own investigation to be deterred by a claim of Executive Privilege. With the Councilors already holding the nation’s highest security clearance and the Constitutional Council charged with impartially assuring the integrity of the Constitution, it is properly positioned to investigate in a timely manner the validity of any Presidential claim to Executive Privilege. It would be sustained in cases where the Constitutional Council concludes that it is valid, otherwise it would be rescinded and Congress can pursue its investigation, or the Constitutional Council can, if it chooses, to investigate the issue that Executive Privilege was intended to hide.
This illustrates one of the reasons why it is important that the Constitutional Council be predicated on impartial adherence to the Constitution, and that its Councilors have the nation’s highest security clearance.
