Executive
Privilege
Copyright
2002
by
Mary
Sparrowdancer
The
actual
phrase,
"Executive
Privilege,"
was
not
a
part
of
the
common
language
until
the
Eisenhower
administration.
The
first
time
the
term
was
used
occurred
in
1954
when
Senator
Joseph
McCarthy
was
investigating
the
Eisenhower
administration.
McCarthy
had
planned
to
subpoena
Eisenhower's
chief
of
staff,
but
Eisenhower
told
his
advisers
that
Congress
had
no
right
to
ask
White
House
personnel
to
testify
in
any
manner
concerning
conversations
with
the
President
"at
any
time
on
any
subject."
Although
the
phrase
"executive
privilege"
is
not
directly
mentioned
anywhere
in
the
Constitution
of
the
United
States,
the
privilege
itself
stems
from
the
accepted
concept
of a
separation
of
powers,
and
it
has
a
long
history
in
presidential
politics.
Beginning
with
George
Washington,
presidents
have
claimed
the
right
to
withhold
information
from
either
Congress
or
the
judicial
branch.
Because
this
means
ultimately
withholding
information
from
the
entire
nation
for
whom
the
office
of
presidency
is
meant
to
serve,
executive
privilege
remains
a
controversial
power
which
strikes
at
the
core
of
democratic
principles.
In
essence
it
can
be
used
to
nullify
the
Founding
Fathers’
concept
of
accountability
in
government.
Although
executive
privilege
is a
legitimate
presidential
power,
it
is
such
only
when
the
circumstances
under
which
it
is
exercised
are
appropriate.
Certain
standards
of
acceptability
must
certainly
be
met,
otherwise
the
privilege
may
be
abused
for
self-serving
purposes
such
as
during
the
Watergate
scandal.
In
that
situation,
former
president
Richard
Nixon
claimed
that
executive
privilege
was
a
power
belonging
to
the
entire
executive
branch,
with
unlimited
scope.
President
Washington,
however,
felt
that
the
withholding
of
information
was
a
legitimate
process
only
as
long
as
it
was
done
in
the
service
of
the
public
interest.
He
determined
that
he
could
not
withhold
information
merely
for
the
purpose
of
concealing
embarrassing
or
politically
damaging
information.
On
December
13,
2001,
president
George
W.
Bush
invoked
executive
privilege
in
order
to
keep
Congress
from
seeing
documents
of
prosecutors’
decision-making
in
cases
ranging
from
a
decades-old
Boston
murder
to
the
Clinton-era
fund-raising
probe.
This
particular
instance
of
withholding
information
from
the
nation
may
be
cited
as
particularly
controversial
because
it
appears
to
block
an
investigation
of
grossly
unethical
practices
within
the
FBI
- an
investigation
that
was
already
underway
-
and
because
unethical
conduct
on
the
part
of
any
powerful
branch
of
government
has
the
potential
to
affect
the
lives
of
any
and
all
citizens
of
the
United
States.
According
to
MSNBC
News,
"Representative
Dan
Burton
of
Indiana,
the
Republican
House
chairman
whose
committee
sought
the
documents,
decried
the
decision
and
said
it
wrongly
handicapped
Congress
for
overseeing
the
government.
‘This
is
not
a
monarchy,’
Burton
said
after
hearing
of
Bush’s
block.
‘The
legislative
branch
has
oversight
responsibility
to
make
sure
there
is
no
corruption
in
the
executive
branch.’"
Of
particular
concern
regarding
this
case,
is
that
it
stems
from
revelations
that
Joseph
Salvati
of
Boston
spent
30
years
in
prison
for
a
murder
he
did
not
commit
even
though
the
FBI
had
evidence
of
his
innocence.
Salvati
was
freed
in
January
2001
after
a
judge
concluded
that
FBI
agents
hid
testimony
that
would
have
cleared
Salvati.
They
hid
the
testimony
because
they
wanted
to
protect
an
informant.
Salvati
along
with
Peter
Limone,
66,
were
in a
group
of
six
men
found
guilty
of
the
underworld
murder
of
Edward
"Teddy"
Deegan
in
1965.
In
January
of
2001,
Superior
Court
Judge
Margaret
Hinkle
threw
out
the
convictions
of
both
Salvati
and
Limone
for
the
murder
they
said
they
didn't
commit,
stating
that
newly
discovered
evidence
raised
doubts
about
the
conduct
of
the
FBI
and
fairness
of
their
trials.
Justice
Department
investigators
probing
corruption
in
the
Boston
FBI
gave
the
lawyers
of
Salvati
and
Limone
FBI
informant
reports
written
around
the
time
of
Deegan's
murder.
The
reports
show
that
informants
not
only
told
FBI
agents
of
plans
for
the
murder
beforehand,
but
they
also
gave
the
FBI
a
list
of
those
involved.
Neither
Limone’s
nor
Salvati’s
name
appeared
on
the
list
-
nor
did
two
of
the
other
four
men
also
convicted.
Two
men
died
in
prison.
Adding
to
the
controversy
of
Bush’s
instructions
to
withhold
additional
information
from
Representative
Burton
and
the
other
government
officials
attempting
to
investigate
the
activities
of
the
FBI,
is
the
timing
of
the
Bush’s
decision,
which
came
after
members
of
the
House
Government
Reform
Committee
apologized
to
Salvati
and
his
wife,
Marie,
stating
there
is
no
excuse
for
what
the
government
did,
and
apologizing
for
the
government’s
actions.
"I
want
to
express
to
both
of
you
how
deeply
sorry
we
are
for
everything
that
was
taken
away
from
you
and
everything
you've
had
to
go
through
the
last
30
years,"
said
Rep.
Burton,
who
happens
to
be
the
committee
chairman.
Evidence
indicates
that
not
only
did
the
FBI
protect
informants
who
helped
them
bring
down
top
New
England
mobsters,
but
they
also
manipulated
testimony
in
murder
trials,
as
well
as
permitted
mobsters
to
commit
various
crimes
in
exchange
for
information.
Representative
Burton
called
for
the
hearings
after
learning
of
the
Salvati
case
and
of
federal
indictments
charging
alleged
mobsters
James
"Whitey"
Bulger
and
Stephen
"The
Rifleman"
Flemmi
with
approximately
twenty
murders
and
allegations
that
FBI
agents
covered
up
their
crimes
to
protect
their
prized
informants.
Bulger,
71,
and
Flemmi,
63,
allegedly
were
allowed
to
conduct
crimes,
including
murders,
while
informing
FBI
agents
about
rival
mobsters
during
a
period
of
time
spanning
several
decades.
Flemmi
is
awaiting
trial,
and
Bulger
remains
at
large
and
is
on
the
FBI's
Ten
Most
Wanted
list.
Ex-FBI
agent
John
J.
Connolly
has
been
charged
with
racketeering
and
obstruction
of
justice
for
his
handling
of
Bulger
and
Flemmi.
"This
is a
story
that
needs
to
be
told,"
Salvati
testified.
"The
government
stole
more
than
30
years
of
my
life."
For
the
two
men
who
died
while
in
prison,
the
FBI
stole
their
lives.
Rep.
Burton’s
hearing
and
investigation
included
testimony
from
F.
Lee
Bailey
and
one
of
the
two
former
FBI
agents
accused
of
hiding
evidence
that
would
have
proven
Salvati's
innocence.
Bailey
testified
that
he
believes
the
FBI
coached
the
prosecution's
key
witness
to
lie
on
the
witness
stand.
"He
told
me
he
had
quite
a
bit
of
help,"
Bailey
said
of
the
key
witness.
"I
believe
the
testimony
was
furnished."
Rep.
Christopher
Shays,
R-Conn.,
also
issued
an
apology
to
Salvati,
saying
he
was
"profoundly
sorry"
for
what
happened.
No
similar
regret
was
shown
by
former
FBI
Agent
H.
Paul
Rico,
however.
Rico,
author
of
the
secret,
hidden
reports
that
told
of
the
informants
notifying
FBI
agents
beforehand
of
the
Deegan
murder,
stated
that
Salvati's
ordeal
might
make
"a
nice
movie."
As
quoted
in
the
Associated
Press,
Rico
stated,
"Remorse
-
for
what?
Would
you
like
tears
or
something?
I
believe
the
FBI
handled
it
properly."
Rico
said
he
was
not
convinced
of
Salvati's
innocence
until
hearing
him
testify
some
thirty
years
after
his
imprisonment.
It
is
possible
that
the
outspoken
outrage
over
this
case
might
have
played
a
key
role
in
motivating
George
W.
Bush
to
halt
the
investigation
thus
protecting
the
FBI.
However
outspoken
it
has
been,
though,
it
is
supremely
justified.
"I
think
you
should
be
prosecuted,"
Representative
Shays
reportedly
told
Rico,
"I
think
you
should
be
sent
to
jail."
Although
the
Salvati
case
was
only
the
first
of
several
hearings
Rep.
Burton’s
committee
planned
to
hold
as
it
investigated
the
FBI's
use
of
informants
and
its
other
unethical
and
clearly
illegal
activities,
Bush’s
announcement
to
withhold
further
information
from
the
committee
in
mid-stream
has
apparently
put
a
stop
to
the
investigation.
That
he
would
block
an
investigation
of
government
corruption
raises
numerous
questions.
That
he
would
do
so
in
mid-stream
rather
than
before
the
information
became
publicly
known,
raises
additional
questions
Whatever
the
reasons,
outrage
over
this
act,
as
well
as
the
inappropriate
use
of
"executive
privilege"
continue
to
be
supremely
justified.
When
branches
of
the
government
secretly
take
part
in
murders
of
the
citizens
of
the
United
States,
when
they
abuse
the
judicial
system
and
without
moral
conscience
send
innocent
victims
to
prison,
when
they
hide
information
about
known
criminals,
then
that
branch
is
corrupt.
Moral
principle
alone
calls
for
investigation
of
such
activities.
For
the
president
of
the
United
States
to
announce
"executive
privilege"
for
the
purpose
of
blocking
investigation,
blocking
justice,
and
allowing
corruption
to
carry
on
unimpeded,
is
not
only
morally
unprincipled,
it
is
egregious.
Works
Cited
AP.
The
Associated
Press.
"Wrongly
jailed
man
gets
apology."
Ken
Maguire.
Retrieved
from
http://www.truthinjustice.org/limone-apology.htm
on
1/11/02
Hirsen,
James
L.,
J.D.,
Ph.D.,
"Executive
Privilege
(Right
or
Ruse)?"
1999.
Retrieved
from
FirstLiberties.com;
http://www.firstliberties.com/exec_privilege.html
on
1/10/02
MSNBC.
News
article.
"Bush
invokes
executive
privilege
doctrine."
December
13,
2001.
Retrieved
from
http://stacks.msnbc.com/news/672144.asp
on
1/10/02.
Rozell,
Mark
J.
Professor
of
Politics,
Catholic
University
of
America.
Congressional
Testimony,
November
6,
2001.
Retrieved
from
http://www.house.gov/reform/gefmir/
hearings/2001hearings/1106_presidential_records/rozell.doc
on
1/11/02
USA
Today.
"Bush
invokes
privilege
to
keep
documents
secret."
December
2001.
Retrieved
from
http://www.usatoday.com/news/washdc/dec01/2001-12-13-executive-privilege.htm
on
1/11/02.
