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….”