Executive Privilege Since United States v. Nixon: Issues of Motivation and Accommodation

18 Pages Posted: 10 May 2019

See all articles by Dawn Johnsen

Dawn Johnsen

Indiana University Maurer School of Law

Date Written: 1999


The events that dominate our national consciousness on this twenty-fifth anniversary of United States. v. Nixon underscore the value of a review of executive privilege. Independent Counsel Kenneth Starr's inclusion in his impeachment referral of President Clinton's very assertion of executive privilege both evidences and contributes to the vulnerability of the privilege - and to the vulnerability of Presidents willing to assert it. Clearly motive matters. Where a President asserts executive privilege in order to hide evidence of illegal acts or other wrongdoing by high level executive officials, the assertion is illegitimate. Unlike situations where requested information would reveal executive branch wrongdoing, the fact that release of a deliberative communication to the President likely would embarrass the President typically should not defeat an otherwise legitimate claim of privilege. Difficult cases may arise where the information sought not only would prove embarrassing to the President but arguably would reveal presidential wrongdoing, or where the assertion of the privilege itself otherwise may be viewed as an abuse of power. For reasons I will discuss, I believe that direct presidential involvement in responding to congressional requests for information should be avoided whenever possible. Only Presidents may assert executive privilege in disputes with Congress, but they should do so only when absolutely necessary, only as a last resort, typically late in the process. Other executive branch officials first should seek to accommodate Congress's legitimate needs and exhaust alternatives, which requires them to express to Congress their concerns about confidentiality in terms other than assertions of executive privilege.

Keywords: Executive privilege

JEL Classification: K00, K19, K4

Suggested Citation

Johnsen, Dawn, Executive Privilege Since United States v. Nixon: Issues of Motivation and Accommodation (1999). Minnesota Law Review, Vol. 83, No. 1127, 1999, Indiana Legal Studies Research Paper No. 410 , Available at SSRN: https://ssrn.com/abstract=3385755

Dawn Johnsen (Contact Author)

Indiana University Maurer School of Law ( email )

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