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Know The Powers of the President as Chief Executive Officer Before You Vote, Part 3

May 18, 2008
This election period, the voters know and want to know much more about the presidency and whether that candidate can actually make changes. Voters will benefit greatly by understanding the powers of the presidency.

During the Bush administration most citizens have become familiar with the president's power of Executive Privilege, which is the power to refuse to disclose information.

The famous Watergate break-in and cover-up faced rare constitutional issues. President Nixon claimed executive privilege when asked to turn over the tapes. The Court weighed the general need of confidentiality with the president and cabinet members with the specific need of the tapes as relevant evidence in a criminal trial. It ruled that he must turn over the tapes for such a specific reason. United States v. Nixon, 418 U.S. 683 (1974).

The president has an unqualified privilege with respect to military or diplomatic secrets. The Court will not allow a challenge if the privilege is made in these areas.

However there is a qualified privilege the president can claim. President Bush claimed executive privilege to stop an aide from testifying along with document requests about the firings of 9 U.S. attorneys. This could have caused a constitutional crisis if Congress brought the issue to the Supreme Court because even Nixon did not try to prevent testimony from White House Counsel John Dean. Dean's testimony led to the articles of impeachment on President Nixon.

The qualified privilege can be overcome if three elements are present: First, the request must come with very specific information in the form of a subpoena. In the Nixon case, the subpoena asked for tape recordings of conversations on specific dates, thus it satisfied this element. Second, there must be consideration which outweighs the presidents need for confidentiality, like the need for the court to have necessary evidence in a criminal proceeding. Third, if the privilege is denied, the material must be given to the judge who will personally inspect the material and excise any irrelevant information before releasing it to the parties..

Even following these three elements, the Bush administration still refused to testify and hand over documents in the firing of the nine U.S. attorneys.

Again in early 2008, President Bush ordered White House lawyers to claim executive privilege about the destruction of videotapes that showed CIA interrogators torturing terrorism suspects. This was to prevent senior White House aides from testifying.

Executive privilege is actively used today and can cause other areas of the president's agenda to stall if this would be challenged in the Supreme Court.

It would be advisable to ask Senator McCain, Senator Clinton, and Senator Obama how and in what circumstances they would claim executive privilege.
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