Scott Horton, "A Republic, If You Can Keep It," July 20, 2007
So what happens when an administration systematically breaks the law for years, with complete impunity? It is enabled by the judiciary to a large extent, particularly by judges that Bush appointed who consistently find, contrary to 300 years of legal precedent and the tradition of our own Revolution, that now suddenly the holders of our democratic executive office are even less accountable in the courts than was the last man to formally wear a crown in America, George III.
What happens is that executive privilege is now used to block any inquiry by the legislative branch-the ultimate power play used to turn the Congress into a meaningless ornament, stripped of the core of its Constitutional function. The White House's calculus now is that it can transform Congress into an impotent and meaningless collection of busybodies. It will do this by invoking executive privilege and instructing administration officials not to cooperate with inquiries that look into its serious wrongdoing on one end, and it will use the filibuster to block any serious measure from even coming to a vote in the Senate. All it needs for this charade is the support of 40 Republican senators. And at this point it has that number-though just barely.
Raoul Berger, "The Grand Inquest of the Nation," October 1973:
The fact is that executive privilege-root and branch-is a myth, without constitutional basis, and the best evidence that can be mustered for it is a series of self-serving Presidential assertions of a power to withhold information. On this issue, in fact, we have the testimony of Mr. Nixon himself. When Congressman Nixon was riding to glory on the trail of "fellow travelers," the FBI, on instructions from President Truman, refused to deliver an FBI report to a Congressional investigating committee. On the House floor, Mr. Nixon rejected the proposition that "the Congress has no right to question the judgment of the President. I say that the proposition cannot stand from a constitutional standpoint, or on the basis of the merits." History demonstrates that Congressman Nixon was right and President Nixon is wrong . . . .
Nixon errs in asserting that "the manner in which the President exercises his assigned executive powers is not subject to questioning by another branch of the Government." Mr. Nixon needs to be reminded that Chief Justice Marshall rejected the notion that the President was immune from subpoena in the trial of Aaron Burr and held that President Jefferson could be required to deliver to Burr a letter written to Jefferson by Gen. James Wilkinson, who was implicated in the Burr conspiracy. In consequence, there is no Presidential immunity that can be shared with the Nixon aides. Furthermore, since "all civil officers" are impeachable by the terms of the Constitution, they are subject to inquiry without the leave of the President. Impeachment, said Elias Boudinot in the First Congress, enables the House "to pull down an improper officer, although he should be supported by all the power of the Executive." The point was made again and again by, among others, Abraham Baldwin, who had been a member of the Convention.
My search of the several Convention records, let me repeat, turned up not a shred of evidence that the President was empowered to withhold any information from Congress. Nor was such a power secreted in the interstices of the "Executive power," which the Framers conceived largely as a power to execute the laws. The lawmaking body, as Parliament showed and Montesquieu recognized, has a legitimate interest in examining how its laws are being executed. Since the Framers were at pains expressly to authorize the President to "require the opinions in writing of the principal officers in each of the executive Departments," they were hardly likely sub silentio to give him carte blanche to cripple the recognized functions of the grand inquest.