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Can a Former President Invoke Executive Privilege Once Out of Office?

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I asked myself the question, “Can a former President invoke Executive Privilege once out of office?” I then set out to find the answer. Here is what I found from Library of Law and Liberty website under an article titled “The Constitution and Executive Privilege” (Rozell, 2012)

“President George W. Bush was not so reluctant to claim executive privilege. Bush moved on several fronts to reestablish executive privilege as a customary presidential power. Yet his efforts were highly controversial. In one case, he expanded the scope of executive privilege for former presidents, and even to allow them to transfer this constitutional authority under Article II to designated family representatives. Bush issued an executive order in 2001 that effectively revised the intent of the Presidential Records Act of 1978 in a way that made it harder for the public to get access to the papers of past presidential administrations.

In another case, the Bush administration tried to expand executive privilege to protect Department of Justice (DOJ) documents from investigations long ago closed. This claim was particularly bothersome because the longstanding practice was to claim a right to withhold information about ongoing investigations that could be compromised by public disclosure.

The most significant Bush-era executive privilege controversy surrounded the president’s efforts to prevent the release of subpoenaed documents and then testimony of certain White House aides regarding the politically motivated firings of several U.S. attorneys. The president claimed absolute immunity for White House aides, although the U.S. district court of D.C. ultimately rejected that argument.

These uses of executive privilege by the Bush (43) administration showcase how the political give-and-take of our system of separated powers often resolves such controversies. In the former example, the president initially prevailed in large part due to a tepid response from Congress and a lack of significant opposition outside of the academic community. President Obama eventually overturned the Bush executive order. In the second example, a spate of negative publicity and aggressive efforts by a congressional committee to get access to the disputed documents resulted in the administration agreeing to turn over most of the materials it had tried to conceal.”

I bet Obama is going to rue the day he turned over this Executive Order. Elections do indeed have consequences.

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Edited by Theseus
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