Executive Privilege: A Balancing Test
An important court decision came down this week concerning Governor John Corzine and the doctrine of "Executive Privilege". Basically, executive privilege is the power claimed by the Executive Branch (whether it be the President of the United States or, in this case, the Governor of New Jersey) to resist certain subpoenas, court orders, and other attempted interventions by the legislative and judicial branches. Although the doctrine of executive privilege is not contained in the Constitution, the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine and is derived from the supremacy of the executive branch relating to its own area of Constitutional activity.
In the recent decision by the Appellate Division, the Court held that Governor Corzine will not have to release emails exchanged with his ex-girlfriend, union boss Carla Katz. Originally, the Superior Court ordered that the Governor release these emails because the Corzine-Katz relationship "created a clear potential for conflict" that the public had a right to evalute. Both Corzine and Katz appealed this ruling to the Appellate Division. Now, the Appellate Division overruled Judge Paul Innes' order and found that the doctrine of executive privilege protects these communications. The emails contained information concerning a negotiation between the Governor and Katz for a new contract for state workers. Now, if Tom Wilson, the State Republican Chairman who sued for access to these emails, wishes to continue this fight, his only recourse is to appeal the Appellate Division decision to the New Jersey Supreme Court.
Executive privilege is an important doctrine which maintains the separation of powers in our governmental system. Although it appears that more than half of New Jersey voters think that the governor should be forced to turn over these emails, I believe the court made the right decision here. It is imperative that legislators and judges are prevented from interfering in the essential operations of the executive branch. The doctrine of executive privilege was created to ensure that these other branches are prevented from doing just that. However, the lessons learned from the Nixon administration make it clear that there must be certain limits placed on executive privilege. I believe that these determinations should be made on a case by case basis by the courts. They must examine the factual circumstances surrounding the communications and determine whether the privilege protects the material or not. It looks like the court got it right this time.
In an interesting aside, in reading the article I noticed a picture of Carla Katz. I didn't know it at the time, but Ms. Katz was a student at Seton Hall University School of Law at the same time I was there. I believe we had a legal writing class together. I didn't realize who Ms. Katz was at the time but now I know. The small world of New Jersey politics and attorneys.
For further information on this decision, the Governor Corzine and Separation of Powers article is available on NJ.com.
