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Former Presidents and Executive Privilege

52 Pages Posted: 23 Nov 2008 Last revised: 22 Mar 2013

Laurent Sacharoff

University of Arkansas School of Law

Date Written: December 1, 2009

Abstract

The Constitution provides former Presidents with no powers or role, and yet numerous former Presidents including Truman and Nixon have asserted executive privilege in order to withhold information from Congress, historians, and the public. The most recent former President, George W. Bush, is likely to make similar assertions based upon his sweeping view of the rights of former Presidents as reflected in his recently revoked Executive Order 13,233, potentially leading to a constitutional collision between the rights of former Presidents and those of Congress. This article argues that notwithstanding Nixon v. Administrator of General Services, former Presidents should retain no right to assert executive privilege based upon the text, structure and historical context of the Constitution and its antimonarchical premises, as well as the nature of executive privilege when compared to other privileges.

Keywords: executive privilege, presidential privilege, state secrets, Nixon, Miers, Conyers, Judiciary Committee, Constitution, Constitutional, Separation of Powers, Article II

JEL Classification: K00, K10, K40, K41

Suggested Citation

Sacharoff, Laurent, Former Presidents and Executive Privilege (December 1, 2009). Texas Law Review, Vol. 88, 2009; Temple University Legal Studies Research Paper No. 2009-20. Available at SSRN: https://ssrn.com/abstract=1304302

Laurent Sacharoff (Contact Author)

University of Arkansas School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

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