This article attempts to analyze to what extent the scope of executive privilege, constitutionally committed to the executive branch, is determined by judicial process or by purely political factors. It opens with a brief report on the process of formation of the Presidential model of government and the system of checks and balances in the United States. Focusing on the checks imposed on the Executive, this article distinguishes those restraints that are clearly constitutionalized, or stemming from judicial determination of their constitutionality, and those which are the result of judicial interpretation of the beneficial aspects of public policy or political decisions of the Congress. It then concludes with the observation that the flexibility built into the Constitution by ambiguous language or simply by the gaps left by the Framers, does not always result in a healthy process of the parliamentary implementation of the Constitution. In contrast, such ambiguities actually may lead to awkward political meddling with the constitutional concept of presidential government, affecting the integrity of the Constitution.
Rett R. Ludwikowski, Politicization and Judicialization of the U.S. Chief Executive’s Political and Criminal Responsibility: A Threat to Constitutional Integrity or a Natural Result of the Constitution’s Flexibility?, 50 AM. J. COMP. L. SUPP. 405 (2002).