The Executive's Privilege

63 Pages Posted: 8 Nov 2019 Last revised: 15 Feb 2020

See all articles by Jonathan David Shaub

Jonathan David Shaub

University of Kentucky J. David Rosenberg College of Law

Date Written: October 30, 2019

Abstract

Both the executive branch and Congress currently claim the final word in oversight disputes. Congress asserts its subpoenas are legally binding, and the executive branch claims the final authority to assert executive privilege and, accordingly, refuse to comply with a subpoena or to prosecute an official for that refusal. These divergent views stem in large part from the relative absence of any judicial precedent, including not a single Supreme Court decision on the privilege in the context of congressional oversight. In that vacuum—unconstrained by precedent—the executive branch has developed a comprehensive theory of executive privilege to support—and implement—prophylactic doctrines that render Congress largely powerless in oversight disputes. For the first time, this Article sets out the full extent of the executive branch’s doctrine, the various pieces of which have been expressed in OLC opinions, letters to Congress, and court filings. Existing scholarship largely ignores this doctrine, and addresses executive privilege on the basis of two, faulty premises: first, that the privilege is an affirmative constitutional authority belonging to the president, and, second, that the privilege represents a type of evidentiary privilege that protects specified categories of information implicating certain generalized confidentiality interests. Moreover, existing scholarship does not distinguish between executive privilege in the context of judicial proceedings and congressional oversight.

Rejecting those premises, this Article proposes an understanding of executive privilege specific to congressional oversight that better reflects history and first principles of constitutional interpretation. Executive privilege in the context of congressional oversight is not an affirmative constitutional authority based on specific types of information but a limited presidential immunity from compelled congressional process—the Executive’s privilege. Both Congress’s oversight authority and executive privilege are recognized as implied constitutional authorities. But rather than infer two competing affirmative authorities, this Article proposes to infer a limit—presidential immunity—on the first. Doing so is more consonant with first principles of constitutional interpretation, more consistent with history, and more conducive to the proper balance of power between the branches. The Executive’s privilege as set out in this Article is an immunity contingent upon a presidential finding that concrete, identifiable harm would result from the disclosure of specific information to Congress. Understanding it as a limited immunity—and severing it from the undifferentiated confidentiality interests and broad categories of information with which the executive branch has conflated it—eliminates the prophylactic doctrines on which the executive branch currently relies to thwart legitimate oversight and returns to Congress the ability to conduct effective, constitutional oversight. And, contrary to the current executive branch view, this theoretical understanding of executive privilege also excludes it from the context of impeachment, a position consistent with the historical understanding of the House of Representatives’ distinct and expansive authority to conduct impeachment inquiries and the Senate’s separate authority to conduct impeachment trials.

Keywords: executive privilege, constitutional law, congress, oversight, impeachment

Suggested Citation

Shaub, Jonathan David, The Executive's Privilege (October 30, 2019). Duke Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3477699 or http://dx.doi.org/10.2139/ssrn.3477699

Jonathan David Shaub (Contact Author)

University of Kentucky J. David Rosenberg College of Law

620 S. Limestone Street
Lexington, KY 40506-0048
United States

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