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  • Executive Privilege Disputes Between Congress and the President: A Legislative Proposal

    In the last half-century, the executive branch and the legislators on Capitol Hill have frequently clashed over information that Congress feels it needs to effectuate its lawmaking or oversight functions, but that the administration feels the need to keep confidential. As a result, congressional investigations have been stymied and, in a number of instances, harmful or improper presidential actions have continued without appropriate scrutiny or constraint. Consider the stalemate from 2007–2009 between Congress and the Executive over allegations of politicization at the Department of Justice (DOJ). In the course of seeking to determine why several U.S. Attorneys were forced to resign en masse, Congress uncovered credible evidence that the DOJ had been commandeered by partisan operatives aiming to entrench their political allies by manipulating prosecutions. These revelations called into question the integrity of the federal criminal justice system and indicated that crucial decisions were made inside the White House. But the President blocked the ensuing congressional investigations at the White House door. He ordered Karl Rove, former White House Aide; Harriet Miers, former White House Counsel; and Joshua Bolten, White House Chief of Staff, not to honor valid congressional subpoenas— claiming executive privilege over testimony Rove and Miers would provide and documents in Bolten’s possession as well as immunity from congressional subpoenas for his aides.

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