Which President was the first to use executive privilege? You may be surprised

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Which President was the first to use executive privilege? You may be surprised

CREATED Jun 21, 2012

Reporter: Craig Smith

TUCSON (KGUN9-TV) - Wednesday, the President claimed the power of executive privilege saying Attorney General Eric Holder doesn't have to give up documents a Congressional committee is demanding in it's probe of the fast and furious gun walking operation.
But what is executive privilege and when can the President use it?

When President Obama says there are certain things he doesn't have to do because he's the President, even the very first President would back him up. George Washington used it in some treaty negotiations.
Attorney John Munger says plenty of Presidents have invoked privilege since.

"Dwight Eisenhower used it 44 times; mostly in the national security context but he used it a lot.  And in the Watergate case of course it was used.  Bill Clinton used it 14 times. George Bush used it six times."
Retired UA political science professor Peter Goudinoff says the idea that the President can keep some things confidential is like privileged, communication with your lawyer so you can brainstorm, speak freely and work out tricky issues.

"The argument being if someone can come in after the fact and basically go through our discussions we had while trying to figure out what the policy should be, then knowing that, who's going to open up?"     
Executive privilege is not spelled out in the Constitution. It grows from the way the Constitution separates the power of the President, Congress and the Courts.

KGUN9 reporter Craig Smith asked Munger: "Is it fair to say in the Executive Branch can claim this as an absolute and make that stick then your balance of powers has become unbalanced?>
John Munger says no branch can never claim absolute privilege to do as it likes.

"The employees of one branch of government could never be investigated by another branch of government then that would mean you would have absolute power in one branch of government.  That obviously cannot work."

John Munger says it's well established  executive privilege applies to the President but not so clear how firmly it applies to other members of the Executive Branch when the President is not directly involved.  So Munger says when Attorney General Holder says the President was not in the loop in discussions of Fast and Furious that may undercut the privilege claim.

Usually some sort of compromise ends up working out before either side sets a precedent that could restrict what they can do in the future.

For more background on executive privilege, see this article on the investigative journalism site, Pro Publica.