Common Law Executive Privilege(s)

100 Indiana Law Journal ___ (forthcoming)

76 Pages Posted: 9 Oct 2024 Last revised: 13 Feb 2025

See all articles by Jonathan David Shaub

Jonathan David Shaub

University of Kentucky - College of Law

Date Written: March 01, 2024

Abstract

There are few Supreme Court cases that enjoy as much widespread support as the Court’s unanimous decision in United States v. Nixon. The recent pitched battles between Congress and the executive branch have made apparent the vast disagreement between the two branches over access to information and executive privilege. But that disagreement does not extend to Nixon. Both branches claim Nixon as the foundation of their respective—and contrary—constitutional positions. Nixon thus remains the unquestioned jurisprudential foundation for the modern doctrine of executive privilege. But a close inspection demonstrates that this foundation is not a stable one; instead it is a foundation largely constructed on the basis of unnecessary, ill-considered dicta.

As this Article demonstrates, Nixon conflated the constitutional question about one branch’s power vis-à-vis another branch with an issue that was neither briefed nor contested by the parties—whether the information at issue was protected by a constitutional evidentiary privilege. The executive branch has weaponized that conflation in the context of congressional oversight and created prophylactic constitutional doctrines to thwart inquiry into congressional need. The conflation at the heart of Nixon has also created a mismatch in scholarship, such that the recent scholarship on secrecy, common law privileges, and FOIA practices relating to law enforcement information, state secrets, and state constitutional privileges is almost entirely divorced from work on congressional oversight and executive privilege. That partition exists because of Nixon and despite the fact that the same types of information and accountability interests are at stake. 

This Article attempts to sever the entrenched conflation at the heart of Nixon and modern executive privilege doctrine and reestablish—in the context of congressional oversight—the distinction between common law executive privileges and the constitutional authority of the two branches. That conflation is the foremost obstacle to resolution the repeated, intractable interbranch disputes over information. But such an avenue is only possible if both Congress and the executive branch are willing to forgo some of their entrenched categorical positions, including the congressional refusal to recognize the legitimacy of common law privileges. Severing that conflation will restore to conversations about congressional oversight the policy and accountability considerations that animate these common law privileges as well as provide a new theoretical paradigm—grounded in common law—that transforms difficult constitutional questions that have recently confounded courts and scholars, such as a former president’s authority to assert executive privilege or the ability of the government to protect sensitive information held by third parties, into routine questions of evidentiary privilege.

Keywords: executive privilege, state secrets, congressional oversight, separation of powers, nixon, law enforcement privilege, deliberative process, presidential communications

Suggested Citation

Shaub, Jonathan David, Common Law Executive Privilege(s) (March 01, 2024). 100 Indiana Law Journal ___ (forthcoming), Available at SSRN: https://ssrn.com/abstract=4948083 or http://dx.doi.org/10.2139/ssrn.4948083

Jonathan David Shaub (Contact Author)

University of Kentucky - College of Law ( email )

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Lexington, KY 40506-0048
United States
859.562.3183 (Phone)

HOME PAGE: http://https://law.uky.edu/directory/jonathan-david-shaub

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