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Independent Judiciary and Executive Privilege: Essential Pillars of Democracy

The Supreme Court as composed June 30, 2022 to present.
Credit: Fred Schilling, Collection of the Supreme Court of the United States.

The Democrats argue that Donald Trump’s candidacy poses a threat to democracy. However, he is the presumptive candidate of the Republican Party. By attempting to keep him off the ballot, silencing him, and deplatforming the opposition, they are the ones threatening democracy.

After the Supreme Court ruling on immunity, they are saying that an independently adjudicating Supreme Court poses a threat to democracy, but the opposite is true. The U.S. system is founded on the principle of an independent judiciary.

Furthermore, challenging presidential immunity is perilous. Without presidential immunity, each incoming administration would be able to bring charges against the previous president for policies they disapprove of. Taken together, these three would make the United State a banana republic.

The concept of judicial independence is embedded in the structure of the Constitution and its various provisions. Article III of the Constitution establishes the judiciary as an independent branch of government.

An independent judiciary is integral to the separation of powers among the legislative, executive, and judicial branches. An independent Supreme Court is able to adjudicate according to the Constitution, free from political pressure, threats, or retribution.

This is a vital part of the checks and balances system, as it prevents the passage of laws or executive orders that violate the rights protected by the Constitution.

Judicial independence is crucial for resolving election disputes fairly and in accordance with the law, which maintains public confidence in the electoral process and the legitimacy of elected representatives.

The 14th Amendment of the Constitution has been interpreted by the Supreme Court to apply to election practices and procedures. Cases like Bush v. Gore (2000) demonstrate how the Court adjudicates issues related to the fairness and equality of election processes.

Consequently, it is appropriate for citizens who feel an election violated the law or was conducted unfairly to bring their case to the Supreme Court.

Article III, Section 2 grants the judicial power of the United States to the Supreme Court and other federal courts. It allows these courts to hear cases arising under the Constitution, federal laws, and treaties.

This ensures that all individuals are equal before the law and that legal disputes are resolved impartially, without favoritism or bias, reinforcing public trust in the legal system and the democratic process.

Consequently, it is reasonable for American citizens to challenge an election by bringing their case to the Supreme Court. Additionally, if an opposition candidate feels that proceedings in lower courts are politically motivated and unfair, they can escalate their complaints to the Supreme Court.

Democrats are behaving as if executive privilege is a new concept. However, executive privilege has always existed in the U.S. and in most high-functioning democracies.

While it is not explicitly mentioned in the U.S. Constitution, the principle has been inferred from the separation of powers doctrine. Article II, Section 1 vests the executive power in the President, implying the need for confidentiality in executive functions to perform duties effectively.

Article II, Section 3 requires the President to ‘take Care that the Laws be faithfully executed,’ suggesting the necessity for discretion and confidentiality in executive operations.

Executive privilege has a long and evolving history in the United States. The first use of executive privilege dates back to George Washington, who refused to provide the House of Representatives with documents related to the Jay Treaty negotiations with Great Britain, asserting the need for confidentiality in diplomatic matters.

During the Aaron Burr trial in 1807, President Thomas Jefferson claimed executive privilege to withhold documents, but ultimately provided the documents after a court order, while maintaining the right to confidentiality.

The term “executive privilege” was formally coined during the Eisenhower administration. The concept was further defined and tested during the Watergate scandal, leading to the landmark Supreme Court case United States v. Nixon (1974).

The Court ruling affirmed that executive privilege exists, but that it is not absolute and can be overridden in the context of a criminal investigation. In addition to Presidents Nixon, Bill Clinton, and Barack Obama also invoked executive privilege during their administrations.

Executive privilege helps maintain the separation of powers by allowing the executive branch to operate independently from the legislative and judicial branches. This independence is crucial for the effective functioning of each branch, preventing any one branch from becoming too powerful.

Executive privilege is often discussed in terms of protecting the confidentiality of presidential communications, particularly those related to national security, diplomatic negotiations, and internal deliberations.

However, it also extends to certain actions taken by the President in their official capacity. In the recent Supreme Court ruling on Trump v. United States, the Court provided clarity on what constitutes “official acts” that are protected under executive privilege.

“Official acts” are defined as actions within the President’s conclusive and preclusive constitutional authority. This includes decisions and actions directly related to the execution of the President’s duties under the Constitution. The Court emphasized that these acts are integral to the President’s role and thus merit protection to maintain the separation of powers.

The recent Supreme Court ruling in Trump v. United States (2024) is consistent with previous Supreme Court decisions. In Clinton v. Jones (1997), the Court ruled that the President does not have temporary immunity from civil litigation for actions taken before his presidency, but it also affirmed that sitting Presidents have immunity from certain judicial processes that might interfere with their official duties.

In Mississippi v. Johnson (1867), the Court ruled that the President could not be restrained by injunction from carrying out his official duties. Nixon v. Administrator of General Services (1977) affirmed that former Presidents have certain protections related to their actions in office. Finally, in Nixon v. Fitzgerald (1982), the Court held that the President has absolute immunity from civil damages for actions taken within the scope of official duties.

By protecting the confidentiality of executive communications, executive privilege facilitates more effective decision-making. Advisors can provide candid advice, and officials can discuss various options and strategies thoroughly, leading to better-informed policies and actions.

Additionally, by protecting the President’s official actions, executive privilege ensures that the President can make policy decisions without fear of reprisal. The concept of executive privilege also underscores the judiciary’s recognition of the executive branch’s need for confidentiality. While the judiciary can review claims of executive privilege, it generally respects the executive’s prerogative unless there is a compelling need for disclosure.

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