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Undefined power is an effective tool

WASHINGTON — Presidents dating back to George Washington have claimed a murky power to keep the inner workings of their administrations secret from Congress.

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That authority — known as executive privilege — isn't in the Constitution. It hasn't been clearly defined by the courts. Yet invoking it has proven effective for presidents determined to keep witnesses or documents away from congressional investigators.

President Barack Obama is the latest to assert the privilege: He refused Wednesday to turn over some Justice Department documents about a botched anti-smuggling operation that allowed hundreds of guns sold in Arizona to end up in Mexico.

Where does the idea of executive privilege come from?

It's a principle based on the constitutionally mandated separation of powers — the idea that the executive branch, Congress and the courts operate independently of each other.

The concept of executive privilege dates at least to 1792, when Congress was probing a disastrous battle against American Indians that cost the lives of hundreds of U.S. soldiers. President George Washington and his Cabinet decided the president had the right to refuse to turn over some documents if disclosing them would harm the public. In the end, Washington gave lawmakers what they sought. But the idea of executive privilege took root.

Didn't the Supreme Court settle the issue when it ordered President Richard Nixon to hand over the Watergate tapes recorded in the White House?

Not really. The court ordered Nixon to surrender the tapes in that case — a criminal investigation. But the justices also found a constitutional basis for claims of executive privilege, leaving the door open for presidents to cite it in future clashes with Congress.

Do presidents claim executive privilege often?

Most reach for it sparingly. Wednesday was Obama's first time in his 31/2 years in office. His predecessor, George W. Bush, cited it six times in eight years. Bush's father invoked it only once in his single term.

The administration of President Bill Clinton, who faced investigation of his Whitewater land deals and then a sex-and-lies scandal, asserted executive privilege 14 times. Some of those claims were kept quiet and quickly dropped, however.

What comes next for Obama?

Probably more negotiation. In the past, presidents and lawmakers have been loath to let an executive privilege fight escalate into a court battle.

Can Congress punish the attorney general?

The next step is a contempt of Congress vote in the full Republican-controlled House. Full House approval would send the case to the local U.S. attorney for enforcement. Who is that U.S. attorney's boss? Attorney General Greg Holder and, ultimately, Obama, who appointed him. That's why the Justice Department traditionally declines to pursue such criminal contempt of Congress cases.

Undefined power is an effective tool 06/20/12 [Last modified: Wednesday, June 20, 2012 10:28pm]

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