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EXECUTIVE PRIVILEGE/DISSENTING OPINION
3/29/2008 8:22:38 AM

Past presidents covered

Information covered by executive privilege remains confidential even after the expiry of the terms of office of the President, Cabinet members and presidential advisers. Thus, a former President can assert executive privilege.

The character of executive privilege attaches to the information and not to the person. Executive privilege is for the benefit of the State and not for the benefit of the office holder. Even death does not extinguish the confidentiality of information covered by executive privilege.

Executive privilege must be exercised by the President in pursuance of official powers and functions. Executive privilege cannot be invoked to hide a crime because the President is neither empowered nor tasked to conceal a crime. On the contrary, the President has the constitutional duty to enforce criminal laws and cause the prosecution of crimes.

Executive privilege cannot also be used to hide private matters, like private financial transactions of the President. Private matters are those not undertaken pursuant to the lawful powers and official functions of the Executive.

However, like all citizens, the President has a constitutional right to privacy. In conducting inquiries, the Legislature must respect the right to privacy of citizens, including the President’s.

Specific information

Executive privilege must be invoked with specificity sufficient to inform the Legislature and the Judiciary that the matter claimed as privileged refers to military, national security or diplomatic secrets, or to confidential Presidential communications.

Executive privilege must be invoked after the question is asked by the legislative committee, not before. A witness cannot raise hypothetical questions that the committee may ask, claim executive privilege on such questions, and on that basis refuse to appear before the legislative committee.

If the legislative committee furnished in advance the questions to the witness, the witness must bring with him the letter of the President or Executive Secretary invoking executive privilege and stating the reasons for such claim.

There are other categories of government information which are considered confidential but are not strictly of the same status as those falling under the President’s executive privilege. An example of such confidential information is the identity of an informer which is made confidential by contract between the government and the informer.

The privilege character of the information is contractual in nature. There are also laws that classify the identity of an informer as confidential. The privilege character of the information is conferred by the Legislature and not by the Executive’s implied power of executive privilege under the Constitution.



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