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I well remember reading this book 35 years ago. Berger attacks the idea of "Executive Privilege" and never lets up. He goes through the history of it, discovering there never was any discussions in the Congress or constitutional convention backing up the concept of Executive Privilege. It's basically all from memo's written up by subordinates to Eisenhower to provide him justification, after the fact, for some actions that Eisenhower may have taken. Most of the memos relied upon conjecture and argumentation -- not constitutional law discussion to arrive at conclusions that backed up Eisenhower. Those memos were familiar to Nixon who used what he recalled from them to justify the actions of Nixon's administration.
Berger states, "A long-standing guide to construction is: what was the mischief the draftsmen sought to remedy." That theme runs through all of his books. The man is extremely well read. When he published Executive Privelege, A Constitutional Myth, no sane Supreme Court Justice dared challenge him. Where in the Constitution, by direct quote or implication, does the Executive Branch of our government have the authority to withhold information from its partners, the Judicial and Congressional Branches? If you had three partners in business with specific duties which intertwined, could one partner simply buy ten thousand acres, or for that matter sell ten thousand acres, without the knowledge and signatures of his partners? If he had no power of attorney to do so, it would be a breach of relationship. A breach of the design of government is actually a form of sedition. Berger reveals; Professor Arthur Schlesinger, Jr, concluded that the term "executive privilege" seems to be of very recent American usage . . . I cannot find that any President or Attorney General used it before the Eisenhower administration." Berger realized that the word "executive" was a post-revolutionary concept. Executive was not considered a noun; therefore, imputing exclusive power in any branch that would exclude oversight, would be to place it above the law. Some quotes from the Constitutional Framers in his book; Roger Sherman " . . . considered the Executive magistracy as nothing more than an institution for carrying the will of the legislature into effect" James Wilson: the only powers that were strictly Executive were ". . . those executing the laws and appointing officers." Governor Randolph: "What are his powers? To see the laws executed. Every executive in America has that power.Read more ›
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