What is Executive Privilege?

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By Andrew Chow, Esq. on June 21, 2012 6:55 AM

What is executive privilege? President Barack Obama is asserting executive privilege as a House committee investigates a Justice Department gun-tracking program called Fast and Furious, the Los Angeles Times reports.

Executive privilege is the president's right to keep information confidential. It's typically invoked because of national security concerns, or because disclosure would be contrary to the interests of the executive branch.

The president's right to assert executive privilege is actually not explicitly stated in the Constitution. So where does this privilege come from?

Though not found in the Constitution, the right to assert executive privilege is implicit in the Constitution's separation of powers, courts have held.

Under the separation of powers, each branch of government -- executive, legislative, and judicial -- must be allowed to deliberate issues on its own, free from the influence of the other branches of government. For example, judges can discuss cases with their law clerks and not have to disclose what was said.

For the executive branch, this right to confidentiality includes advice given to the president by his aides, along with conversations deemed too sensitive to be made public. Presidents dating back to George Washington have invoked this right, though the term "executive privilege" wasn't commonly used until the 1950s.

Today's assertion of executive privilege is the first time President Obama has invoked it. By comparison, President George W. Bush invoked executive privilege six times while in office; President Bill Clinton used it 14 times; President George H.W. Bush used it once; and President Ronald Reagan used it three times, according to the Associated Press.

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