The Executive's Privilege

81 Pages Posted: 8 Nov 2019

See all articles by Jonathan David Shaub

Jonathan David Shaub

Government of the State of Tennessee - Office of the Attorney General

Date Written: October 30, 2019

Abstract

There is no legal doctrine of executive privilege. Instead, numerous competing doctrines exist that rely on different theories and refer to materially different types of disputes. At the same time, executive privilege may be the constitutional doctrine that has the most frequent, material impact on the balance of power between Congress and the executive branch. Both branches 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. Although ample scholarship addresses executive privilege and the executive branch’s various positions, it does so on the basis of two premises: first, that the privilege is an affirmative constitutional authority belong to the president, and, second, that the privilege is, in part, a type of evidentiary privilege that depends on the type of information at issue.

This Article suggests neither premise is correct. 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 both more consistent with history and more reflective of the proper balance of power between the branches. And doing so would have enormous practical effects. Understanding the Executive’s privilege as an immunity — and severing it from the evidentiary privileges with which the executive branch has conflated it — would eliminate the prophylactic doctrines on which the executive branch currently relies to thwart legitimate oversight and would return enormous power to Congress. But it would also retain the historical, limited prerogative of the president to withhold certain information in oversight disputes when necessary. Perhaps most importantly, defining the Executive’s privilege in this manner and severing it from evidentiary privileges would provide much-needed clarity to the respective legal authorities of the two branches in oversight disputes. It would allow existing legal precedent to apply to oversight while also establishing a clear constitutional rule according to which the branches could operate. Finally, understanding the executive's privilege as an immunity specific to the context of congressional oversight provides a theoretical basis to understand why executive privilege does not apply to impeachment proceedings.

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

Suggested Citation

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

Jonathan David Shaub (Contact Author)

Government of the State of Tennessee - Office of the Attorney General ( email )

War Memorial Building
301 6th Avenue, North
Nashville, TN 37243
United States

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