Limits of Executive Privilege: Due Process Rules!

Executive privilege is exactly what it suggests - an executive's privilege, i.e., a privilege. The meaning of the word "privilege" suggests that the word is a benefit granted upon the assumption of office, not a right which absolves the holder of any wrongdoing in the eyes of the law. Indeed, one must emphasize that it is not a license to circumvent constitutional restrictions on governmental power but an waiver rarely used in order to fulfill a duty which requires substantial infringement of the social contract for the common good.

More so, executive privilege is and will always be subject to due process. Due process, if it is properly functioning, is capable of determining the need to temporarily allow a constitutional infringement for the common good. An impregnable executive privilege is tantamount to granting absolute power to hide abusive and ultra vires tendencies of governments, which history testifies as common.

The need for accountability and transparency ought to limit executive privilege when credible evidence suggests that such privilege is not being used to perform an essential official duty that requires constitutional infringement but for the advancement of personal gain.

Hence, the argument that executive privilege ought not to be questioned is unheard of in a liberal democracy, but is acceptable only in illiberal democracies or authoritarian regimes.