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The Executive's Privilege PAGE PROOF DRAFT – PAGE NUMBERS SUBJECT TO CHANGE 9/18/2020 Duke Law Journal VOLUME 70 OCTOBER 2020 NUMBER 1 THE EXECUTIVE’S PRIVILEGE JONATHAN DAVID SHAUB† ABSTRACT Both the executive branch and Congress claim the final word in oversight disputes. Congress asserts its subpoenas are legally binding. The executive branch claims the final authority to assert executive privilege and, accordingly, to refuse to comply with a subpoena without consequence. 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 Copyright © 2020 Jonathan David Shaub † Assistant Professor, University of Kentucky J. David Rosenberg College of Law; J.D., Northwestern Pritzker School of Law; B.A., Vanderbilt University. This article concerns congressional oversight disputes on which I worked as an Attorney-Adviser in the Office of Legal Counsel at the U.S. Department of Justice, but none of the information contained in this article is confidential or subject to any claim of privilege. This paper benefitted mightily from numerous conversations with and comments from my OLC colleagues, particularly Amin Aminfar, John Bies, Martine Cicconi, Kirti Datla, Adele El- Khouri, Caroline Flynn, Troy McKenzie, Annie Owens, Matt Roberts, and Shalev Roisman. I also owe a debt of gratitude to Paul Colborn for introducing me to executive privilege and for his insight into the development of executive branch precedent in this area. The country is a better place because of longtime career public servants such as Paul. I owe additional thanks to the Lawfare team—Benjamin Wittes, Quinta Jurecic, and Margaret Taylor, in particular—for encouraging me to write and think through these issues, and to Marty Lederman for his enthusiastic support and insightful comments. The article benefitted additionally from comments by Mark J. Rozell and Mitchel A. Sollenberger. Finally, I can’t thank the team at the Duke Law Journal enough for their insightful comments and edits. 102 DUKE LAW JOURNAL [Vol. 70:nnn of two unexamined premises: first, that the privilege is an affirmative constitutional authority belonging to the president, and, second, that the privilege is akin to an evidentiary privilege that protects specified categories of information. Moreover, existing scholarship rarely distinguishes 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 president’s finding that concrete, identifiable harm would result from the disclosure of specific information to Congress. Understanding executive privilege as a limited immunity— and severing the privilege 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 relies to thwart legitimate congressional oversight. Further, this understanding of the privilege provides a theoretical foundation to explain why it does not apply in impeachment, a position consistent with the historical understanding of Congress’s broad powers of inquiry during impeachments and subsequent trials. 2020] THE EXECUTIVE’S PRIVILEGE 103 TABLE OF CONTENTS Introduction .............................................................................................. 104 I. The Executive Branch Doctrine ........................................................... 108 A. A Single, Constitutional Privilege Composed of Multiple “Components” ........................................................................ 110 1. The Emergence of “Components” ...................................... 111 2. The Expansion of the Components and Separation of Presidential Communications ........................................... 114 3. Defining the Scope of the Components ............................... 117 4. Showing of Need Necessary To Overcome Various Components ...................................................................... 119 B. The President’s Sole Prerogative: Asserting Executive Privilege and Controlling Information ................................................... 121 II. The Practice of Executive Privilege: Congressional Impotence and the Prophylactic Executive Privilege ................................................... 125 A. The Ubiquity of Executive Privilege in Congressional Oversight ................................................................................ 126 B. Congressional Impotence ....................................................... 131 1. Congress’s Tools of Inquiry ............................................... 132 2. Congress’s Lack of Enforcement Authority ........................ 137 C. Prophylactic Executive Privilege ............................................ 150 1. Protecting the President’s Prerogative: Executive Privilege as a “Last Resort” ............................................................ 152 2. Protecting the President’s Prerogative: Absolute Authority To Control the Dissemination of Information ................... 155 3. Protecting the President’s Prerogative: Prophylactic Doctrines........................................................................... 156 III. The Executive’s Privilege .................................................................. 164 A. The Executive’s Privilege as Immunity from Congressional Oversight Process ................................................................... 166 1. An Immunity Grounded in Historical Practice ................... 166 2. A Contingent Immunity ....................................................... 171 B. The Executive’s Privilege and Impeachment ......................... 175 Conclusion ................................................................................................ 182 104 DUKE LAW JOURNAL [Vol. 70:nnn [Executive privilege] in its modern form was born of honorable intent, the desire of the Eisenhower administration to protect its officials from the attacks of the late Senator McCarthy. The “cure,” however, has proven to be as deadly as the disease, as executive privilege, both formally and informally invoked, has ripened into a highly effective means of nullifying the investigatory function of Congress. In neither logic, law, or practice can there exist simultaneously an effective power of legislative oversight and an absolute executive discretion to withhold information. Inevitably, one must give way to the other and the only question is which one is to be dispensed with. —Senator J. W. Fulbright, 19711 INTRODUCTION The “[a]bility to control what information to disclose and when to disclose it is a potent political weapon,” wrote Archibald Cox, the special prosecutor in the Watergate scandal and the victim of the Saturday Night Massacre, in 1974.2 In the digital age—where fleeting thoughts or statements become “information” that is preserved and searchable—those words have only become more true. When used by the executive branch, this potent political weapon is currently known as executive privilege. The executive branch claims that executive privilege is an affirmative constitutional authority belonging to the president to control the dissemination of certain information.3 Congress, on the other hand, understands executive privilege to be a limited evidentiary privilege, “a relatively nebulous, constitutional privilege that protects [only] the confidentiality of presidential communications.”4 This longstanding constitutional disagreement has never been resolved by the Supreme Court. 1. Executive Privilege: The Withholding of Information by the Executive: Hearing on S. 1125 Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92d Cong. 24 (1971) [hereinafter Executive Privilege Hearings] (statement of Sen. J.W. Fulbright). 2. Archibald Cox, Executive Privilege, 122 U. PA. L. REV. 1383, 1433 (1974); Evan Andrews, What Was the Saturday Night Massacre?, HIST. (Oct. 18, 2019), https://www.history.com/news/what- was-the-saturday-night-massacre
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