Steve Bannon Helpfully Reminds Everyone That Executive Power Is Out of Control


The first of these was a case brought by Nixon himself, Nixon v. Administrator of General Services (1977). The Supreme Court upheld the 1974 law handing Nixon’s papers over to the General Services Administration and said these papers could be used in judicial proceedings. But it also said Nixon retained certain ill-defined rights over the documents based on executive privilege. To enjoy executive privilege, the Court said, you didn’t have to be president. You could be an ex-president. Later, in Cheney v. District Court (2004), the Supreme Court affirmed that to enjoy executive privilege you needn’t ever to have worked for the government. That ruling let Vice President Dick Cheney keep secret which energy company officials attended meetings of his energy policy task force and what they said.

United States v. Nixon established that the courts, not the president, would map the boundaries of executive privilege. But after Nixon v. GSA the courts were reluctant to go there. What they mostly did instead was tell Congress and the president to work out individual disputes between themselves. That’s what the D.C. district court did, for instance, when Anne Gorsuch Burford, President Ronald Reagan’s administrator for the Environmental protection Agency, refused to give Congress documents that it had reason to believe would demonstrate her indifferent enforcement of hazardous waste laws. In that instance the Reagan White House backed down after it came out that Burford had withheld cleanup funds for a toxic waste dump near Los Angeles to impede Democratic Gov. Jerry Brown’s unsuccessful 1982 Senate campaign. Amid the resulting furor, Burford resigned, bequeathing her outsized conception of executive power to her son, Supreme Court Justice Neil Gorsuch.

Over time, though, presidents—especially Republican ones—grew bolder when directed by the courts to negotiate executive-privilege compromises with Congress. These disputes concerned documents in the executive branch’s possession and testimony by subordinates whom the president could in most instances fire. That gave presidents the upper hand, especially as they came to understand that Congress really didn’t want to send uncooperative government officials to jail (and that even if they did, it would be up to the Justice Department, over which the president had some control, to prosecute witnesses ruled in contempt of Congress). Presidents also became increasingly aware that claims of executive privilege could delay congressional and judicial inquiries past the time where anybody would give a damn. Litigation is long, and life is short.

Democratic presidents used executive privilege mostly to fend off chickenshit partisan congressional investigations like the one into the Obama administration’s bungled Fast and Furious operation. (In that instance, a judge said no.) Republican presidents used executive privilege with genuine conviction, at least on the part of their lawyers, because of a legal theory of  “the unitary executive” developed by Federalist Society fanatics. This doctrine, first embraced by the Reagan administration, gave the president absolute power over…



Read More: Steve Bannon Helpfully Reminds Everyone That Executive Power Is Out of Control

This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt-out if you wish. Accept Read More

Live News

Get more stuff like this
in your inbox

Subscribe to our mailing list and get interesting stuff and updates to your email inbox.

Thank you for subscribing.

Something went wrong.