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Daily Archives: November 3, 2019

The Executive’s Privilege: Rethinking the President’s Power to Withhold Information

LawFare:”What is “executive privilege”? In the specific context of information disputes between the executive branch and Congress, the Supreme Court has never addressed—let alone answered—that question. Nevertheless, as the Trump administration repeatedly relies on that constitutional doctrine to reject demands for information and testimony, the question has been at the forefront of a spate of journalism and legal commentary. Almost every blog, newspaper and magazine has, at some point in the past year, published an “explainer” on executive privilege and its related doctrines or provided some descriptive account of the history of the doctrine. I have contributed several such pieces to Lawfare, and others have done the same. Each of these pieces takes a different angle or addresses a different controversy. But each largely makes four basic points: (a) The concept of executive privilege is hotly disputed; (b) there are very few relevant court cases and none that provide definitive answers; (c) there are a number of historical incidents, from the administration of George Washington to that of Barack Obama, that are of debatable—and contested—significance; and (d) the legal resolution of these highly disputed questions is likely of little practical significance. The last point is the result of three things: Civil lawsuits largely take too long; the executive branch controls criminal enforcement mechanisms; and Congress itself lacks any real enforcement mechanism—short of reviving its long-dormant authority to arrest people, which itself would pose a number of legal and practical problems. Indeed, the contours of the long-standing dispute over executive privilege and related doctrines such as testimonial immunity have become so familiar that the only remaining question to be explored is often whether each subsequent invocation of the doctrine fits within recent past practice, represents an expansion or is outrageous in its departure from practice.

In a draft paper I have just posted online for comment, I have attempted to take a different tack…my paper, “The Executive’s Privilege,” proposes an understanding of executive privilege that aligns more closely with historical precedent and better reflects first principles of constitutional interpretation. The central argument of my paper is that executive privilege should not be understood—as it is now—either as an implied, affirmative authority belonging to the president to withhold or control information or as an evidentiary privilege related to the various “executive” privileges recognized in judicial proceedings. Instead, it should be understood as an extremely narrow limit on Congress’s implied oversight authority—that is, the executive’s privilege against, or immunity from, compelled congressional process in the context of oversight….”

The Government Protects Our Food and Cars. Why Not Our Data?

The New York Times – The United States is virtually the only developed nation without a comprehensive consumer data protection law and an independent agency to enforce it – “Why are Americans protected from hazardous laptops, fitness trackers and smartphones — but not when hazardous apps on our devices expose and exploit our personal information?… Continue Reading

Resources for Measuring Cybersecurity

R Street – Kathryn Waldron, Resident Fellow, National Security & Cybersecurity – Resources for Measuring Cybersecurity – A Partial Annotated Bibliography – PDF In the field of cybersecurity, there is no well-defined system that is capable of measuring cybersecurity in an objective, quantifiable, and comparative manner. In light of this, the R Street Institute National… Continue Reading

Everything Not Saved Will Be Lost: Preservation in the Age of Shared Print and Withdrawal Projects

Everything Not Saved Will Be Lost: Preservation in the Age of Shared Print and Withdrawal Projects, Zachary Maiorana, Ian Bogus, Mary Miller, Jacob Nadal, Katie Risseeuw, Jennifer Hain Teper, C&RL Vol 80, No 7 (2019) > Maiorana – “This paper’s review of current issues in shared print retention and preservation identifies such shared issues as… Continue Reading

Top 6 Disposable Email Address Services

Lifewire: “Avoid spam using a disposable email address services. When you give websites and new contacts a disposable email address instead of your real one, you can selectively disable the disposable address as soon as you get spam through it, while continuing to use all your other aliases. All disposable email address services provide this… Continue Reading

How Trump Reshaped the Presidency in Over 11,000 Tweets

The New York Times: “When Donald Trump entered office, Twitter was a political tool that had helped get him elected and a digital howitzer that he relished firing. The Times examined how, in the years since, he has fully integrated the social media platform into the very fabric of his administration…Early on, top aides wanted… Continue Reading

Publication of Mueller Report’s Secret Memos Begins

“BuzzFeed News sued the US government to see all the work that Mueller’s team kept secret. We have published the first installment, with revelations about the Ukraine conspiracy theory, Michael Cohen, Paul Manafort, and more… In response to a court order, the Justice Department released the first installment of documents: hundreds of pages of summaries… Continue Reading