The Shadow of Executive Privilege
15 The Forum 547 (2017)
Posted: 13 Nov 2017
Date Written: November 9, 2017
At a public hearing of the Senate Intelligence Committee this past June, Attorney General Jeff Sessions informed the Senators that he could not answer questions about his conversations with the President, nor with any “high officials in the White House.” He clarified that this refusal did not amount to an assertion of executive privilege, because “that’s the president’s prerogative,” and the President himself had not invoked the privilege. Rather, Sessions announced his intent to “protect the right of the President to assert [executive privilege] if he chooses.” As of mid-August, I was unable to find any evidence of follow-up by either the Justice Department or the Intelligence Committee as to whether the President indeed was invoking the privilege and, if not, whether and when the requested information would be forthcoming.
The Attorney General’s double evasion – of both the substantive question and the matter of privilege – exemplifies a phenomenon that I call the shadow effect of executive privilege. As it relates to congressional oversight, the shadow effect is the impact on oversight of the implicit or explicit threat that the privilege might be invoked at some point. This effect can take multiple forms, ranging from congresspersons’ choosing not to support new oversight legislation based on actual or ostensible fears of infringing on executive privilege, to legislative committee members declining to ask for certain information in the first place rather than risking a protracted battle over executive privilege.
The shadow effect is not invariably bad. The executive has some legitimate secrecy needs, and congressional oversight in some cases is designed less to enlighten than to harass or to score cheap political points. Intra-political-branch negotiations – particularly where those negotiations themselves are open to public view – can be a democratically healthy exercise that contains the worst impulses of each branch. The potential threat of an executive privilege claim may even play some positive role in this process, prompting a series of discussions and decisions within and between the Justice Department and the relevant congressional committees. Too often, however, the shadow cast by executive privilege stops rather than starts or enriches conversations. It can mark a dead end for information requests, deter their being made in the first place, or justify halting or ignoring legislation that might itself provide a productive framework for oversight. It can also provide political cover for legislators who wish neither to appear spineless in the face of executive intransigence, nor – for reasons of party loyalty or otherwise – to push an administration for answers.
This essay elaborates on the major factors that lend themselves to executive privilege’s shadow effect, as well as some important mitigating forces. It also draws on the Sessions testimony and its aftermath to illustrate both sets of phenomena.
Note: Heidi Kitrosser, The Shadow of Executive Privilege 15 The Forum 547 (2017) Available from De Gruyter (restricted access but should be accessible through most academic libraries’ online collections).
Keywords: executive privilege
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