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US Executive Privilege - Robert Mueller’s Report

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May 10, 2019

Why in news?

The US White House invoked executive privilege to block the release of Special Counsel Robert Mueller’s report.

What is executive privilege?

  • Executive privilege is a legal principle that allows the president to refuse to comply with demands for information.
  • E.g. congressional subpoenas (a writ ordering a person to attend a court)
  • Executive privilege is not explicitly mentioned anywhere in the Constitution.
  • But the Supreme Court has said that it is “fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.”
  • It is generally used to keep private the nature of conversations the president has with advisers, or internal discussions among executive branch officials.
  • The idea is that the White House operates more effectively if the president and his aides can have private, confidential conversations.
  • The Court had held that president’s right to privacy in his communications must be balanced against Congress’ need to investigate and oversee the executive branch.
  • But it is also widely understood that executive privilege cannot be used to cover up wrongdoing.

How effective can its use be?

  • An executive privilege claim is particularly weak when Congress has invoked its power to remove a president through impeachment.
  • In the impeachment context, virtually no part of a president’s duties or behaviour is exempt from scrutiny.
  • If the requisite documents are not produced, Congress can vote to hold administration officials “in contempt of Congress”.
  • It can then go to court and ask a judge to issue an order forcing them to comply.
  • The judge would then decide the merits of an executive privilege claim.

What is the current dispute?

  • The Special Counsel Robert Mueller’s report relates to investigations into Russian interference in the 2016 presidential election.
  • The report concluded that Russia interfered in the elections, favouring Mr. Trump.
  • Recently, the US's House judiciary committee voted along party lines to hold the US attorney general Mr Barr in contempt of Congress.
  • This was after he failed to hand over a more complete version of the Mueller's report as well as the underlying documents.
  • The move escalated a constitutional clash between the Democratic-controlled House of Representatives and Republican President Trump.
  • There were differences over the House's powers to investigate the President, his administration, his family and his business interests.

What is Trump's stance?

  • Trump is obstructing the Congress on multiple probes, criticising the investigations as “presidential harassment.”
  • In an unusual move, he is even suing to stop the release of some materials that lawmakers want.
  • The executive privilege is a tool which Trump could use as investigations close in on him.
  • It is hard to be certain if Trump can withhold the report and underlying evidence through this.
  • To prevail in court the White House will need to be more specific about which documents are protected by executive privilege.


Source: Indian Express

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