Constitutional Law experts: Can an executive branch simply reject a subpeona?

In the grand scheme of things, does the Bush presidential team have the constitutional right to cite executive privilege in response of a subpeona from the Legislative branch?

This is not a question posed to inspire political infighting; more a response to an answer I heard on "Countdown with Keith Olbermann" from expert Johnathon Turley. According to Turley, the executive branch is unlawfully interpreting the executive clause of the constitution. By attempting to use legal measures to delay any accountability, the executive branch may be pursuing illegal activities. The show transcripts haven’t been published yet, so I can’t reference Turley’s comments, but I’m not quite sure how the Bush team is breaking the law.

Thanks for your input!

The Constitution does not spell out Executive Privilege, but, neither does it give the Congress the right to demand documents from the President. The concept of Executive Privilege is rooted in the idea of separation of powers, where each branch is supposed to function essentially independent of the other, except where specified by the Constitution. As the Constitution does not specify what is to be done in this case, the standard, with the exception of explicitly illegal activity, has been that Congress does not have the right to demand documentation from the White House.

In this case, they are merely trying to find illegal activity. In the cases of Watergate and Whitewater, there was explicit illegal activity, and in both cases, the White House lost its bid to protect documentation, but in most cases where there is no available evidence of illegal activity, the courts typically side with the White House on the legality of refusing documents.

Post Author: mark

10 thoughts on “Constitutional Law experts: Can an executive branch simply reject a subpeona?

    railroad_joe

    (January 26, 2010 - 12:33 pm)

    No!… One in the U.S. is above the law, not even the U.S. government.
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    cyanne2ak

    (January 26, 2010 - 12:46 pm)

    He can do that, but only ONCE. If the subpoena is reissued, then too bad for Bush.
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    C.S.

    (January 26, 2010 - 12:54 pm)

    No one knows. The Supreme Court ruled in the Nixon case that executive priviledge does exist but that it is limited in scope. This one is probably going to the Court again and we’ll see what they decide. Hopefully, they’ll clarify executive privilege so that someone could actually answer this question with some certainty. Until then it is all softof vague.
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    Adam C

    (January 26, 2010 - 1:39 pm)

    I’m not an expert on this, but my guess is that the executive branch cannot reject a subpeona. Richard Nixon tried this in the 70’s and failed.
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    Sara

    (January 26, 2010 - 1:59 pm)

    if a common man is subpeonad, he has to obide or goes to jail. if Bush is, he claims his "executive rights". He’s prooving in public that rich and powerful people can do anything and dont have to follow the law.
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    wingshooter08

    (January 26, 2010 - 2:40 pm)

    Yes he can site executive privilege
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    C-Ham

    (January 26, 2010 - 3:17 pm)

    Well I suppose we will find out when it goes to the supreme court
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    barry c

    (January 26, 2010 - 3:51 pm)

    It believe it has been done by many past Presidents including Clinton.
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    Ibredd

    (January 26, 2010 - 4:15 pm)

    yes the three branches of Government are equal, not only the right but the abligation
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    Bryan F

    (January 26, 2010 - 4:33 pm)

    The Constitution does not spell out Executive Privilege, but, neither does it give the Congress the right to demand documents from the President. The concept of Executive Privilege is rooted in the idea of separation of powers, where each branch is supposed to function essentially independent of the other, except where specified by the Constitution. As the Constitution does not specify what is to be done in this case, the standard, with the exception of explicitly illegal activity, has been that Congress does not have the right to demand documentation from the White House.

    In this case, they are merely trying to find illegal activity. In the cases of Watergate and Whitewater, there was explicit illegal activity, and in both cases, the White House lost its bid to protect documentation, but in most cases where there is no available evidence of illegal activity, the courts typically side with the White House on the legality of refusing documents.
    References :

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