THE EXECUTIVE'S PRIVILEGE - Duke Law Journal

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†

BSTRACT

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

† 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, 1971

NTRODUCTION

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.

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.

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.”

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?, H

IST. (Oct. 18, 2019), https://www.history.com/news/what-

was-the-saturday-night-massacre [https://perma.cc/3Y7A-EB8N].

3. See Attempted Exclusion of Agency Couns. from Cong. Depositions of Agency Emps., 43 Op.

O.L.C., slip op. at 2 (May 23, 2019) [hereinafter Attempted Exclusion of Agency Couns.] (suggesting the

doctrine of executive privilege includes “the President’s constitutional authority to control the disclosure

of privileged information”); Auth. of Agency Offs. To Prohibit Emps. from Providing Info. to Cong., 28

Op. O.L.C. 79, 81 (2004) [hereinafter Auth. of Agency Offs.] (recognizing the President’s authority to

supervise “the disclosure of any privileged information, be it classified, deliberative process, or other

privileged material” and “to supervise and control the dissemination of privileged government

information”).

4. T

ODD GARVEY, CONG. RSCH. SERV., LSB10094, DOES EXECUTIVE PRIVILEGE APPLY TO THE

COMMUNICATIONS OF A PRESIDENT-ELECT? 1 (2018); see also Andrew McCanse Wright, Congressional

2020] THE EXECUTIVE’S PRIVILEGE 105

Existing scholarship generally approaches executive privilege as both

an affirmative constitutional authority belonging to the president and a type

of evidentiary privilege. Mark Rozell, perhaps the preeminent authority on

executive privilege, for example, defines it as “the right of the President and

high-level executive branch officers to withhold information from Congress,

the courts, and ultimately the public.”

He notes that the privilege applies

only to certain categories of information.

Other scholars similarly

characterize executive privilege as an affirmative, evidentiary authority

belonging to the president that allows him to withhold certain types of

information and rarely distinguish between information requests from

Congress, the public, and the judicial branch.

Rozell, among others,

demonstrates how the executive branch has transformed the historically

limited concept of executive privilege into a much more significant

constitutional authority.

But he and others ultimately conclude that

resolution of the constitutional dispute between the branches is either

impossible or unwise.

And scholarly commentary largely analyzes

executive privilege as a constitutional doctrine by focusing on formal

Due Process, 85 MISS. L.J. 401, 444–45 (2016) (describing Congress’s view that executive is coterminous

with the presidential communications privilege).

5. Mark J. Rozell, Executive Privilege and the Modern Presidents: In Nixon’s Shadow, 83 M

INN.

L. REV. 1069, 1069 (1999). See generally MARK J. ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL

POWER, SECRECY, AND ACCOUNTABILITY (3d ed. 2010) [hereinafter EXECUTIVE PRIVILEGE] (providing

an in-depth history and analysis of executive privilege and its relation to the proper scope and limits of

presidential power). Rozell’s work began as a response—and counter—to Raoul Berger’s claim that

executive privilege is a myth. See Rozell, supra, at 1071–72 (citing R

AOUL BERGER, EXECUTIVE

PRIVILEGE: A CONSTITUTIONAL MYTH 1–2 & n.3 (1974)).

6. Rozell, supra, note 5, at 1070 (“Executive privilege is an accepted doctrine when appropriately

applied to two circumstances: (1) certain national security needs and (2) protecting the privacy of White

House deliberations when it is in the public interest to do so.”).

7. See, e.g., Todd David Peterson, Contempt of Congress v. Executive Privilege, 14 U.

PA. J.

CONST. L. 77, 81, 96 (2011) (noting that “documents subject to such a presidential claim of privilege relate

to several different categories of executive branch information” and describing executive privilege as “the

implied power of the executive branch to maintain the confidentiality of executive branch documents”);

Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83

INN. L. REV. 1143, 1143 (1999) (“From the earliest days of the Republic . . . chief executives have

precluded Congress and/or the courts from probing particular executive branch conversations and

documents on the grounds that the Constitution grants the President an ‘executive privilege’ to suppress

at least some communications.” (footnote omitted)); Andrew McCanse Wright, Constitutional Conflict

and Congressional Oversight, 98 M

ARQ. L. REV. 881, 948 (2014) [hereinafter Constitutional Conflict]

(defining executive privilege as “an assertion of presidential authority to withhold information from a

judicial or congressional proceeding”).

8. See E

XECUTIVE PRIVILEGE, supra note 5, at 148–94 (discussing “the major executive privilege

controversies” during the George W. Bush and early Barack Obama administrations).

9. See id. at 196–208; Neal Devins, Congressional-Executive Information Access Disputes: A

Modest Proposal—Do Nothing, 48 A

DMIN. L. REV. 109, 110 (1996); Peter M. Shane, Legal Disagreement

and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress, 71

INN. L. REV. 461, 465–66 (1987).

106 DUKE LAW JOURNAL [Vol. 70:nnn

assertions of privilege, the ensuing litigation, and resulting judicial

decisions.

Existing scholarship leaves unexamined the manner in which the

executive branch’s comprehensive doctrine of executive privilege, in

practice, can be used to nullify congressional oversight entirely, even

without formal assertions of privilege. Indeed, the executive branch’s

sweeping doctrine of executive privilege is the unspoken foundation on

which almost all responses to oversight are based.

This Article sets out for the first time the full extent of the executive

branch’s constitutional theory of executive privilege and its tremendous

consequences for the balance of power between the executive and legislative

branches. It does not suggest the development of this theory has necessarily

been purposeful or nefarious; much of it has developed in response to

aggressive congressional committees seeking what Cox described as

“splendid political ammunition”

and “political capital,”

rather than

seriously pursuing oversight for purposes of legislating. The executive

branch’s doctrine has developed, in part, as a means of checking Congress’s

increasingly aggressive exercise of its implied constitutional authority to

access executive branch information and to probe the internal workings of

the executive branch, including the White House itself. But, when

understood as a whole, the expansive authority now exercised by the

executive branch bears little relation to the narrow, historical privilege the

executive branch claims it to be. Instead, the executive branch doctrine has

become an absolute prophylactic privilege, designed to protect the asserted

absolute authority of the president to control information.

10. See generally, Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited,

92 IOWA L. REV. 489 (2007) [hereinafter Secrecy and Separated Powers] (discussing the use of executive

privilege during the administration of President George W. Bush and arguing, as a matter of democratic

theory, that the executive branch should provide information to Congress); Eric Lane, Frederick A.O.

Schwarz, Jr. & Emily Berman, Too Big a Canon in the President’s Arsenal: Another Look at United

States v. Nixon,

17 GEO. MASON L. REV. 737 (2010) (contending that the Supreme Court should not have

recognized a presumptive constitutional privilege for the president’s internal communications because

such secrecy is inconsistent with the Constitution’s structural checks); Nelson Lund & Douglas R. Cox,

Executive Power and Governmental Attorney-Client Privilege: The Clinton Legacy,

17 J. L. & POL. 631

(2001) (arguing that the judicial decisions on privilege during the Clinton administration empowered the

executive branch in matters of executive privilege); Peterson, supra note 7, at 96 (arguing that calls for

reform to the practice of executive privilege after the George W. Bush administration were overreactions);

Constitutional Conflict, supra note 7, at 948 (analyzing the practice of congressional oversight and

executive privilege through the lens of President Obama’s formal assertion of privilege and subsequent

litigation).

11. See e.g., E

XECUTIVE PRIVILEGE, supra note 5, at 7. Rozell does recognize that “because of the

taint of Watergate, some modern presidents have crafted strategies to withhold information without

resorting to executive privilege.” Id. at 6. But Rozell does not examine the constitutional theory under

which they have done so or the ways in which that theory affects Congress’s oversight authority. See id.

12. Cox, supra note 2, at 1428.

13. Id.

2020] THE EXECUTIVE’S PRIVILEGE 107

Both the practice of and scholarship on executive privilege today arise

out of a shared doctrinal and theoretical foundation that conflates judicial

proceedings, congressional oversight, and public disclosure and prioritizes

the nature of the information as opposed to the authority of the relevant

constitutional actors. This Article resets that theoretical foundation based on

first principles of constitutional interpretation and historical practice. It

proposes that executive privilege, in the specific context of congressional

oversight, is best understood as a presidential immunity from compelled

congressional process—the Executive’s privilege. It is not an affirmative

power but a lack of congressional power, a presidential immunity or

“privilege” in the original sense of the word.

But history demonstrates this

constitutional immunity is a narrow one.

In other words, Congress lacks the implied authority to compel the

president to provide information in the context of oversight. The president

enjoys a privilege against such process, but one contingent on an explicit and

public presidential determination that the disclosure would cause concrete,

identifiable harm to a specific interest of the United States. The Executive’s

privilege provides no authority to the president to direct the dissemination of

information more broadly. Nor does it allow for the withholding of

information based on generalized confidentiality interests protected by

evidentiary privileges applicable to judicial proceedings. And the

Executive’s privilege, as historically understood, has no applicability to

impeachment, which is a separate source of congressional authority to

demand information that requires distinct analysis.

This Article unfolds in three parts. Part I details the executive branch’s

doctrine of executive privilege and illustrates how the evolution of that

doctrine has left Congress virtually impotent to enforce its oversight

authority. Part II describes how this doctrine, as implemented, has resulted

in a new “prophylactic” executive privilege that has largely dispensed with

the situational, fact-specific balancing of congressional interests that

historically defined executive privilege.

Part III proposes the Executive’s

privilege—a constitutional theory of executive privilege as a presidential

immunity from Congress’s implied legislative authority that has no

application to impeachment.

14. See Doe v. McMillan, 412 U.S. 306, 307 (1973) (noting that the Speech and Debate Clause,

Article I, Section 6, Clause 1 of the Constitution,

which grants Senators and Representatives an “official

immunity in the legislative context” and establishes “congressional immunity”); Privilege, B

LACK’S LAW

DICTIONARY (11th ed. 2019) (defining “privilege” as a “special legal right, exemption, or immunity

granted to a person or class of persons”).

15. See infra Part III.B.

16. See H

EIDI KITROSSER, RECLAIMING ACCOUNTABILITY: TRANSPARENCY, EXECUTIVE POWER,

AND THE

U.S. CONSTITUTION 88–91 (2015) [hereinafter RECLAIMING ACCOUNTABILITY].

108 DUKE LAW JOURNAL [Vol. 70:nnn

I. THE EXECUTIVE BRANCH DOCTRINE

Since Watergate, executive privilege has received scant attention from

the judiciary, particularly in the context of disputes between the executive

branch and Congress.

Consequently, a robust debate over its nature, scope,

and even existence has gone largely unaddressed by appellate courts and

completely unaddressed by the Supreme Court. Over thirty years ago,

Professor Peter Shane outlined the disagreement among the three branches

about the doctrine of executive privilege.

He recognized that Congress

asserted plenary authority to demand information, the executive branch

asserted the authority to withhold all information that fell under its doctrine

of executive privilege, and the judiciary, in its limited opportunities, had

established a presumptive, qualified privilege that remained ill-defined.

Those fundamental disagreements remain true today.

What has changed since Watergate, however, is that the executive

branch has developed a comprehensive constitutional theory of executive

privilege, laid out in White House statements, Office of Legal Counsel

(“OLC”) opinions, letters to Congress, and court filings. At the core of the

doctrine is the tenet that executive privilege is not an evidentiary privilege

or a presidential authority tied to the potential harm caused by the disclosure

of specific information. Instead, executive privilege, in the executive

branch’s view, is an affirmative constitutional authority belonging to the

president to control the dissemination of particular categories of

information.

The constitutional law that currently governs information disputes

between the executive branch and Congress, in practice, is the doctrine of

executive privilege as developed by the executive branch. As then-Assistant

Attorney General William H. Rehnquist recognized in 1971, “the Executive

Branch has a headstart in any controversy with the Legislative Branch, since

the Legislative Branch wants something the Executive Branch has, and

therefore the initiative lies with the former. All the Executive has to do is

17. Appellate courts have addressed a privilege dispute between a congressional committee and the

executive branch only twice, in Senate Select Committee on Presidential Campaign Activities v. Nixon,

498 F.2d 725, 726 (D.C. Cir. 1974) (en banc), and United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir.

1976), appeal after remand, 567 F.2d 121, 122–23 (D.C. Cir. 1977). Only Senate Select resolved the

merits of the dispute, and the unique facts of that case are unlikely to ever be repeated. See Senate Select,

498 F.2d at 733. An impeachment inquiry into President Nixon had begun in the House, and the Senate

Select Committee was seeking tapes that had already been turned over to the House. Id. at 732.

18. Shane, supra note 9,

at 471–84.

19. Id. at 471, 476, 479–80, 482–83.

20. See Jonathan Shaub, ‘Masters from Two Equal Branches of Government’: Trump and Congress

Play Hardball, L

AWFARE (Apr. 27, 2019, 10:00 AM), https://www.lawfareblog.com/masters-two-equal-

branches-government-trump-and-congress-play-hardball [https://perma.cc/2SHD-5Y86].

2020] THE EXECUTIVE’S PRIVILEGE 109

maintain the status quo, and he prevails.”

Given that “headstart,” the

executive branch’s law governs unless Congress has some means to counter

it. Congress has contested the application of that law in court successfully on

occasion.

But the judicial process takes too long to be effective in the

context of congressional oversight except in limited circumstances and, in

practice, the limited judicial successes have never resulted in a final victory

for the Congress that began the oversight inquiry and filed the litigation, as

opposed to a subsequent Congress.

In his foundational article on executive privilege, Cox wrote that “[i]f

the Executive Branch were left to itself, the practice [of executive privilege]

would surely grow” because “[s]ecrecy, if sanctified by a plausible claim of

constitutional privilege, is the easiest solution to a variety of problems.”

His words are prescient. In the context of congressional oversight, the

executive branch has largely been “left to itself.”

And the practice of

executive privilege has not only grown, as Cox predicted, it has transformed

into an absolute, multifaceted, affirmative presidential authority to control

the dissemination of a broad swath of information and to issue directives

about the dissemination of that information.

This Section sets out that expansive executive branch doctrine. That

doctrine, in practice, grants the executive branch virtually unlimited ability

to “maintain the status quo”

and retain any information it does not want to

provide to Congress. And, conversely, it renders Congress virtually impotent

to compel disclosure of such information.

21. Memorandum from William H. Rehnquist, Assistant Att’y Gen., Off. of Legal Couns., U.S.

Dep’t of Just., to John D. Ehrlichman, Assistant to the President for Domestic Affs., Power of

Congressional Committee to Compel Appearance or Testimony of “White House Staff” 6–7 (Feb. 5,

1971) [hereinafter Rehnquist Memorandum] (emphasis omitted),

https://www.justice.gov/olc/page/file/1225961/download [https://perma.cc/TX6S-VS56].

22. See infra Part II.B.2.c.

23. Cox, supra note 2, at 1433.

24. See id.

25. Rehnquist Memorandum, supra note 21, at 7 (emphasis omitted).

26. See infra Part II.B.

110 DUKE LAW JOURNAL [Vol. 70:nnn

A. A Single, Constitutional Privilege Composed of Multiple

“Components”

The executive branch view is that the president, and only the

president,

may assert a qualified executive privilege,

and that she may do

so over any materials that fall within any one of the recognized

“components” of executive privilege.

For the executive branch, there is a

singular executive privilege that includes within it a collection of

“components,” which individually track common law privileges and core

constitutional functions of the president.

These components include (1)

presidential communications; (2) national security and foreign affairs

information, including classified information and diplomatic

communications, also known as state secrets; (3) internal executive branch

deliberations; (4) sensitive law enforcement or investigatory information,

particularly, but not solely, information from open criminal investigations,

and (5) attorney-client and attorney work-product information.

Many of these components reflect evidentiary privileges applicable in

judicial proceedings and is accompanied by a specific balancing test to

27. Cong. Requests for Confidential Exec. Branch Info., 13 Op. O.L.C. 153, 161 (1989) [hereinafter

Barr Memorandum] (“[E]xecutive privilege cannot be asserted without specific authorization by the

President . . . .” (citing Memorandum from Ronald Reagan to the Heads of Exec. Dep’ts & Agencies,

Procedures Governing Responses to Congressional Requests for Information 1 (Nov. 4, 1982)

[hereinafter Reagan Memorandum], https://www.justice.gov/ola/page/file/1090526/download

[https://perma.cc/FVD7-F827]); see Peterson, supra note 7, at 109 (“By requiring that the President

himself assert the claim of privilege, it forces the President to be accountable for the decision to withhold

documents from Congress and pay the political cost for such a decision.”).

28. See Assertion of Exec. Privilege Over Documents Generated in Response to Cong. Investigation

into Operation Fast & Furious, 36 Op. O.L.C., slip op. at 2–3 (June 19, 2012) [hereinafter Fast & Furious

Assertion].

29. For example, former George W. Bush White House Counsel Fred Fielding argues, with Heath

Tarbert, that the “modern doctrine of executive privilege is best understood as a body of several related,

yet distinct, components—or individual ‘privileges,’ as the courts have commonly referred to them.” Fred

F. Fielding & Heath P. Tarbert, Principled Accommodation: The Bush Administration’s Approach to

Congressional Oversight and Executive Privilege, 32

J.L. & POL. 95, 101 (2016). For other examples, see

Attempted Exclusion of Agency Couns., supra note 3, at 8 & n.2 (discussing the president’s authority to

control the dissemination of all information protected by executive privilege and listing the components);

Assertion of Exec. Privilege Over Commc’ns Regarding EPA’s Ozone Air Quality Standards & Cal.’s

Greenhouse Gas Waiver Request, 32 Op. O.L.C. 1, 3 (2008) (noting the documents over which the

President was asserting privilege implicated “both the presidential communications and deliberative

process components”); and Letter from Bradley Weinsheimer, Assoc. Deputy Att’y Gen., U.S. Dep’t of

Just., to Robert S. Mueller, III, former Special Couns. 2 (July 22, 2019),

https://s.wsj.net/public/resources/documents/MuellerLetter07222019.pdf [https://perma.cc/8Z4A-

JGWL] (informing Mueller that “matters within the scope of [his] investigation were covered by

executive privilege, including information protected by law enforcement, deliberative process, attorney

work product, and presidential communications privileges”).

30. See, e.g., Auth. of Agency Offs., supra note 3, at 82–83 (discussing the presidential

communications and deliberative process “components” of executive privilege); Barr Memorandum,

supra note 27, at 154.

2020] THE EXECUTIVE’S PRIVILEGE 111

determine when the privilege is overcome. But the executive branch views

these components as part of a singular, qualified privilege to which a single,

stringent balancing test applies. Under the executive branch’s view, to

overcome a presidential assertion of privilege, Congress must demonstrate

that the information it has demanded is “demonstrably critical to the

responsible fulfillment of ” its constitutional functions.

1. The Emergence of “Components.” In 1971, then-Assistant Attorney

General William H. Rehnquist, who led OLC, explained the doctrine of

executive privilege before a congressional subcommittee.

He explained

that “[t]he doctrine of Executive privilege has historically been pretty well

confined” to three main areas: (1) foreign relations and military affairs; (2)

pending law enforcement investigations; and (3) “intragovernmental”

deliberations.

Those areas correspond to the types of information

presidents and executive branch officials had withheld from Congress

historically.

As Rehnquist and State Department Legal Adviser John R. Stevenson

explained in a 1969 memorandum, “national security and foreign relations

considerations have been considered the strongest possible basis upon which

to invoke the privilege of the executive.”

The need for secrecy in such

31. This is the standard adopted by the D.C. Circuit to determine whether President Nixon had to

give the Watergate tapes to a Senate committee investigating Watergate. See Fast & Furious Assertion,

supra note 28, at 5 (emphasis omitted) (quoting Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t

of Just., to President George W. Bush, Assertion of Executive Privilege Concerning the Special Counsel’s

Interviews of the Vice President and Senior White House Staff 11 (July 15, 2008) (quoting Senate Select

Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc)),

https://www.justice.gov/file/482156/download [https://perma.cc/E6W6-QF6G]; Barr Memorandum,

supra note 27, at 159; Defendant Motion for Summary Judgment at 36–37, House Comm. on Oversight

& Gov’t Reform v. Holder, 156 F. Supp. 3d 101 (D.D.C. 2016) (No. 1:12-cv-1332), 2014 WL 298660.

The executive branch has also, at times, quoted the standard from United States v. Nixon, 418 U.S. 683,

713 (1974), which found that the presumptive privilege for presidential communications had been

overcome by the grand jury’s “demonstrated, specific need” for the Watergate tapes. See Exec. Order No.

13,233, 66 Fed. Reg. 56,025, 56,026 (Nov. 5, 2001).

32. Executive Privilege Hearings, supra note 1, at 429–35 (statement of William H. Rehnquist,

Assistant Att’y Gen., Office of Legal Counsel, United States Department of Justice).

33. Id. at 431.

34. Id. at 431–35. See generally Hist. of Refusals by Exec. Branch Offs. To Provide Info. Demanded

by Cong. (Part I), 6 Op. O.L.C. 751 (1982) [hereinafter Hist. of Refusals I] (describing “incidents in

which a President personally directed the withholding of information from Congress”); Hist. of Refusals

by Exec. Branch Offs. To Provide Info. Demanded by Cong. (Part II), 6 Op. O.L.C. 782 (1983)

[hereinafter Hist. of Refusals II] (describing “refusals by officials within the Executive Branch to disclose

information or produce documents requested by Congress”).

35. Memorandum from William H. Rehnquist, Assistant Att’y Gen., Off. of Legal Couns., U.S.

Dep’t of Just., & John R. Stevenson, Legal Adviser, U.S. Dep’t of State, The President’s Executive

Privilege To Withhold Foreign Policy and National Security Information 7 (Dec. 8, 1969) (on file with

the Duke Law Journal) [hereinafter Rehnquist & Stevenson Memorandum].

112 DUKE LAW JOURNAL [Vol. 70:nnn

pursuits has ample support in judicial precedent and in historical practice.

The Supreme Court has explained that the president’s “authority to classify

and control access to information bearing on national security . . . flows

primarily from th[e] constitutional investment of [the Commander-in-Chief]

power in the President” and that the “authority to protect such information

falls on the President as head of the Executive Branch and as Commander in

Chief.”

Recognizing these confidentiality interests has led to relatively few

controversies between the executive branch and Congress over such

information.

No president has formally asserted executive privilege since

Watergate over national security or military information.

The only formal

assertions falling into this category involve diplomatic negotiations.

The confidentiality of law enforcement investigations also has a

venerable history in the context of congressional oversight,

with early

36. Nixon, 418 U.S. at 710 (noting the President had “not place[d] his claim of privilege on the

ground they [were] military or diplomatic secrets . . . areas of Art[icle] II duties [to which] the courts have

traditionally shown the utmost deference to Presidential responsibilities”); see also Gen. Dynamics Corp.

v. United States, 563 U.S. 478, 484 (2011) (“[P]rotecting our national security sometimes requires

keeping information about our military, intelligence, and diplomatic efforts secret.”); United States v.

Reynolds, 345 U.S. 1, 6–8 (1953) (“[T]he privilege . . . protects military and state secrets . . . .”); Totten

v. United States, 92 U.S. 105, 106–07 (1875) (preventing an action against the government concerning a

secret contract for clandestine wartime service).

37. Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988); see also N.Y. Times Co. v. United States,

403 U.S. 713, 728–30 (1971) (Stewart, J., concurring) (per curiam) (“[T]he successful conduct of

international diplomacy and the maintenance of an effective national defense require both confidentiality

and secrecy . . . it is the constitutional duty of the Executive . . . to protect the confidentiality necessary

to carry out its responsibilities in the fields of international relations and national defense.”).

38. Rehnquist & Stevenson Memorandum, supra note 35, at 1.

39. See T

ODD GARVEY, CONG. RSCH. SERV., R42670, PRESIDENTIAL CLAIMS OF EXECUTIVE

PRIVILEGE: HISTORY, LAW, PRACTICE, AND RECENT DEVELOPMENTS 24–28 (2014) [hereinafter

RESIDENTIAL CLAIMS OF EXECUTIVE PRIVILEGE] (outlining claims of executive privilege from the

Kennedy through Obama administrations).

40. See Presidential Certification Regarding the Provision of Documents to the House of

Representatives Under the Mexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253, 269 (1996)

[hereinafter Mexican Debt Disclosure Act] (“The President’s constitutional authority to control the

disclosure of documents and information relating to diplomatic communications has been recognized

since the beginning of the Republic.”); Assertion of Exec. Privilege for Documents Concerning Conduct

of Foreign Affs. with Respect to Haiti, 20 Op. O.L.C. 5, 6 (1996) (stating that the history of the country

“is replete with examples of the Executive’s refusal to produce to Congress diplomatic communications

and related documents because of the prejudicial impact such disclosure could have on the President’s

ability to conduct foreign relations”).

41. The executive branch’s position on the disclosure of law enforcement information to

Congress—and the concerns it raises—are summarized in the “Linder letter,” a letter sent to John Linder,

the Chairman of the House Subcommittee on Rules and Organization, in response to hearings the

subcommittee held on congressional oversight of the executive branch. See Letter from Robert Raben,

Assistant Att’y Gen., Off. of Legis. Affs., U.S. Dep’t of Just., to John Linder, Chairman, House Subcomm.

on Rules & Org. of the House 3–5 (Jan. 27, 2000) [hereinafter Linder Letter],

https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/linder.pdf [https://perma.cc/9UD7-

XN29].

2020] THE EXECUTIVE’S PRIVILEGE 113

historical examples dating back to 1825

and 1859.

The most frequently

cited precedent involving the law enforcement component of executive

privilege is Attorney General Robert Jackson’s response in 1941 to a

congressional committee request for all Federal Bureau of Investigation

(“FBI”) reports for the prior two years and all future FBI reports concerning

investigations into labor disputes involving companies with naval contracts.

“[W]ith the approval of and at the direction of ” President Roosevelt, Jackson

informed the committee of the Justice Department’s position “that all

investigative reports are confidential documents of the executive department

of the Government, to aid in the duty laid upon the President by the

Constitution to ‘take care that the laws be faithfully executed,’ and that

congressional or public access to them would not be in the public interest.”

He stated that

[d]isclosure of the reports could not do otherwise than seriously

prejudice law enforcement. Counsel for a defendant or prospective

defendant, could have no greater help than to know how much or how little

information the Government has, and what witnesses or sources of

information it can rely upon. This is exactly what these reports are intended

to contain.

By contrast, the “intragovernmental” discussions component has

relatively little historical basis, first recognized judicially as a common law

privilege in Kaiser Aluminum & Chemical Corp. v. United States

in an

opinion by Justice Reed sitting by designation.

Although some have traced

its origins to English common law,

the confidentiality of intergovernmental

42. In 1825, President Monroe refused to provide information about particular charges against a

naval officer, reasoning that “the publication of those documents might tend to excite prejudices which

might operate to the injury” of the ongoing investigations of the charges against the officer. Hist. of

Refusals I, supra note 34, at 755–56.

43. The Senate had requested information about the investigation into a slave ship that had landed

off the coast of Georgia. Id. at 765. President Buchanan provided a report from the attorney general about

his investigation of the offense, but he refused to provide the internal correspondence with the officers

because doing so would be “incompatible with the public interest.” Id. (quoting James Buchanan, To the

Senate of the United States (Jan. 11, 1859), in 5 A

COMPILATION OF THE MESSAGES AND PAPERS OF THE

PRESIDENTS 1789–1897, at 534 (James D. Richardson, ed., Washington, Gov’t Printing Off. 1897)

[hereinafter M

ESSAGES AND PAPERS OF THE PRESIDENTS]).

44. Position of the Exec. Dep’t Regarding Investigative Reps., 40 Op. Att’y Gen. 45, 46 (1941)

[hereinafter Jackson Memorandum] (quoting U.S. C

ONST. art. II, § 3).

45. Id.

46. Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958).

47. Id. at 940, 945–47.

48. See Mauro Cappelletti & C.J. Golden, Jr., Crown Privilege & Executive Privilege: A British

Response to an American Controversy, 25 S

TAN. L. REV. 836, 836–37 (1973); Russell L. Weaver & James

T.R. Jones, The Deliberative Process Privilege, 54 M

O. L. REV. 279, 283–85 (1989) (tracing the

development of the privilege from the “crown privilege” and common law).

114 DUKE LAW JOURNAL [Vol. 70:nnn

deliberations, known today as the deliberative process privilege, appears to

have been first recognized by President Eisenhower in instructing executive

branch officials not to provide information to Senator Joe McCarthy.

fact, the Eisenhower administration is credited with coining the term

“executive privilege” to cover these internal deliberations

and, until

recently, the privilege for those deliberations was thought to be the executive

privilege.

2. The Expansion of the Components and Separation of Presidential

Communications. These three types of information—involving national

security and foreign affairs, pending law enforcement investigations, or

internal deliberations—continued to be the “components” of executive

privilege through the Reagan administration.

In 1989, for example, only a

few days before leaving office, President Reagan issued an executive order

implementing the Presidential Records Act which required the Archivist of

the United States, upon deciding to disclose presidential records, to notify

the president and to “identify any specific materials, the disclosure of which

he believes may raise a substantial question of Executive privilege.”

The

order defined a “substantial question of Executive privilege” as existing in

the same three scenarios Rehnquist had identified: when disclosure would

impair (1) “national security (including the conduct of foreign relations),”

(2) law enforcement, or (3) “the deliberative process of the Executive

49. In the face of the McCarthy inquiries, Eisenhower issued a letter to the secretary of defense

stating that

[b]ecause it is essential to efficient and effective administration that employees of the

Executive Branch be in a position to be completely candid in advising with each other on

official matters, and because it is not in the public interest that any of their conversations or

communications, or any documents or reproductions, concerning such advice be disclosed,

you will instruct employees of your Department that in all of their appearances before the

Subcommittee of the Senate Committee on Government Operations regarding the inquiry now

before it they are not to testify to any such conversations or communications or to produce

any such documents or reproductions. This principle must be maintained regardless of who

would be benefited by such disclosures.

Letter from Dwight D. Eisenhower to the Secretary of Defense Directing Him To Withhold Certain

Information from the Senate Committee on Government Operations (May 17, 1954), in P

UBLIC PAPERS

OF THE

PRESIDENTS OF THE UNITED STATES: DWIGHT D. EISENHOWER, 1954, at 483–84 (1960); see also

Gerald Wetlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege, 65 I

ND. L.J.

845, 856–60, 865–68 (1990) (describing the origin and development of the privilege in the United States

as a result of President Eisenhower’s legal positions and describing the English law on which the

President relied).

50. See B

ERGER, supra note 5, at 1–2 & n.3; EXECUTIVE PRIVILEGE, supra note 5, at 40–41.

51. See Nixon v. Sirica, 487 F.2d 700, 713–16 (D.C. Cir. 1973) (en banc) (per curiam); infra Part

I.A.2.

52. See Barr Memorandum, supra note 27, at 153–54 (noting that, as of 1989, there were “at least

three generally-recognized components of executive privilege: state secrets, law enforcement, and

deliberative process”).

53. Exec. Order No. 12,667, 54 Fed. Reg. 3403, 3403 (Jan. 18, 1989).

2020] THE EXECUTIVE’S PRIVILEGE 115

branch.”

Although United States v. Nixon

had recognized that the

president’s communications were presumptively privileged,

the executive

branch did not separate presidential communications from

intergovernmental deliberations at this time, probably because no party in

Nixon had argued the information was not presumptively privileged and both

the Supreme Court and the lower courts relied on the general privilege for

intergovernmental deliberations.

Nor was attorney-client information

considered a separate component from deliberative information.

Over time, however, both presidential communications and attorney-

client and attorney work-product information were separated out from the

larger category of internal deliberations and considered to be separate

components with distinct scopes.

That progression is seen, among other

places, in President George W. Bush’s Executive Order 13233, which

updated Reagan’s 1989 order and noted its purpose as establishing policies

for the release of presidential records with respect to “constitutionally based

privileges.”

The order stated that

54. Id.

55. United States v. Nixon, 418 U.S. 683 (1974).

56. Id. at 708.

57. See id. (referencing the privilege discussed in the D.C. Circuit’s en banc opinion in Nixon v.

Sirica, 487 F.2d 700 (1973) (en banc) (per curiam)); Sirica, 487 F.2d at 713 (noting the confidentiality

interests of the executive branch in “intra-governmental documents reflecting . . . deliberations

comprising part of a process by which governmental decisions and policies are formulated” (quoting Carl

Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966))); Brief for the United States

at 55–56, 59 & n.41, Nixon, 418 U.S. 683 (Nos. 73-1766 & 73-1834), 1974 WL 174854, at *55–56

(arguing that the nascent privilege for “intra-agency advisory opinions” was a “relatively recently

articulated version of ‘executive privilege’” and agreeing that communications were presumptively

privileged (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl.

1958))).

58. For example, in 1986 the Office of Legal Counsel clarified: “The interests implicated under

common law by the attorney-client privilege generally are subsumed by the constitutional considerations

that shape executive privilege, and therefore it is not usually considered to constitute a separate basis for

resisting congressional demands for information.” Response to Cong. Requests for Info. Regarding

Decisions Made Under the Indep. Couns. Act, 10 Op. O.L.C. 68, 78 (1986) [hereinafter Indep. Couns.

Act]; see also Cong. Requests for Info. from Inspectors Gen. Concerning Open Criminal Investigations,

13 Op. O.L.C. 77, 80 (1989) (“There are three generally-recognized components of executive privilege:

state secrets, law enforcement, and deliberative process.”); Confidentiality of the Att’y Gen.’s Commc’ns

in Counseling the President, 6 Op. O.L.C. 481, 490 n.17 (1982) [hereinafter Confidentiality of the Att’y

Gen.’s Commc’ns] (noting that a past OLC memorandum opined that the “constitutional privilege against

the compelled disclosure of executive branch deliberations have special force when legal advice is

involved” (quoting Memorandum from John Harmon, Assistant Att’y Gen., Off. of Legal Couns., U.S.

Dep’t of Just., to Benjamin Civiletti, Att’y Gen., U.S. Dep’t of Just., The Constitutional Privilege for

Executive Branch Deliberations: The Dispute with a House Subcommittee Over Documents Concerning

Gasoline Conservation Fee 26 (Jan. 18, 1981))).

59. See infra note 66 and accompanying text.

60. Exec. Order No. 13,233, 66 Fed. Reg. 56,025, 56,025 (Nov. 5, 2001).

116 DUKE LAW JOURNAL [Vol. 70:nnn

[t]he President’s constitutionally based privileges subsume privileges for

records that reflect: [1] military, diplomatic, or national security secrets (the

state secrets privilege); [2] communications of the President or his advisors

(the presidential communications privilege); [3] legal advice or legal work

(the attorney-client or attorney work product privileges); and [4] the

deliberative processes of the President or his advisors (the deliberative

process privilege).

The separation of presidential communications from the deliberative

process of the president, even with respect solely to presidential records,

reflected the severance of the two components within executive branch

doctrine. This was likely driven in part by the D.C. Circuit’s opinion in In re

Sealed Case (Espy),

which construed Nixon to establish a separate

constitutional privilege for presidential communications distinct from the

common law privilege for internal governmental deliberations.

The order

grounded all of these privileges in Nixon, equating the presidential

communications at issue in Nixon with all the other components of executive

privilege.

As Rehnquist’s testimony and other executive branch writings during

the initial post-Watergate period demonstrate, the attorney-client privilege

and work-product doctrine were not regarded as distinct “components” of

executive privilege.

But gradually, the executive branch came to consider

the information protected by these privileges to constitute a separate

component of the constitutionally based executive privilege.

And, although

President Obama revoked Executive Order 13233 on his first day in office

and issued a new executive order using the language of Reagan’s original

order,

his administration regarded the attorney-client privilege and work-

61. Id.

62. In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997) (per curiam).

63. Id. at 744–45. Most importantly, the D.C. Circuit determined the presidential communications

privilege, unlike the privilege for deliberative information, covered the “entirety” of documents falling

within its scope, no matter whether they contained deliberative material or not. Id. at 745.

64. Exec. Order No. 13,233, 66 Fed. Reg. 56,025, 56,025–26 (Nov. 5, 2001).

65. See Indep. Couns. Act, supra note 58, at 78 (“[F]or the purpose of responding to congressional

requests, communications between the Attorney General, his staff, and other Executive Branch ‘clients’

that might otherwise fall within the common law attorney-client privilege should be analyzed in the same

fashion as any other intra-Executive Branch communications.”).

66. See, e.g., Constitutionality of the OLC Reporting Act of 2008, 32 Op. O.L.C. 14, 16 (2008)

[hereinafter Reporting Act of 2008] (listing “the deliberative process, attorney-client, and . . . presidential

communications components” as a separate basis for withholding the documents); Assertion of Exec.

Privilege Regarding White House Couns.’s Off. Documents, 20 Op. O.L.C. 2, 3 (1996) [hereinafter White

House Couns. Assertion] (“Both the attorney-client privilege and the work-product doctrine are subsumed

under executive privilege.”).

67. See Exec. Order No. 13,489, 74 Fed. Reg. 4669, 4669 (Jan. 26, 2009).

2020] THE EXECUTIVE’S PRIVILEGE 117

product doctrine as distinct categories of confidential information.

The

Trump administration continued this practice.

The executive branch thus

currently considers attorney-client privilege and the attorney work-product

information to be protected by a distinct component of executive privilege,

even if the information they protect would also be protected under the

deliberative process privilege.

3. Defining the Scope of the Components. There is almost no judicial

precedent addressing executive privilege, let alone the appropriate scope of

the various components developed by the executive branch. Each

component, however, is to some degree based on an evidentiary privilege

that arises in litigation, particularly in the context of requests under the

Freedom of Information Act (“FOIA”).

The executive branch defines the

scope of each of the components of executive privilege by looking to the

judicial doctrine on the evidentiary privilege, as well as historical practice.

For example, the scope of the common law deliberative process privilege

and the presidential communications privilege have been litigated frequently

under FOIA,

and the executive branch relies on these decisions to define

68. See, e.g., Fast & Furious Assertion, supra note 28, at 2–4 (“Congressional oversight of the

process by which the Executive Branch responds to congressional oversight inquiries would create a

detrimental dynamic that is quite similar to what would occur in litigation if lawyers had to disclose to

adversaries their deliberations about the case.”); Document Product Status Update: Hearing Before the

H. Comm. on Oversight & Gov’t Reform, 114th Cong. 12 (2016) (statement of Peter J. Kadzik, Assistant

Att’y Gen., Office of Legal Counsel, United States Department of Justice) (providing categories of

confidential information and separating out “attorney-client communications, attorney work product, and

internal deliberations”).

69. See, e.g., Letter from Stephen E. Boyd, Assistant Att’y Gen., Off. of Legis. Affairs, U.S. Dep’t

of Just., to Elijah E. Cummings, Chairman, House Comm. on Oversight & Gov’t Reform 2 (June 12,

2019) [hereinafter Boyd-Cummings Letter], https://int.nyt.com/data/documenthelper/1110-2019-6-12-

census-documents-not/21a262dafd7e6f6b7f12/optimized/full.pdf#page=1 [https://perma.cc/WWF3-

CVAZ] (citing the “attorney-client communications [and] attorney work product components of

executive privilege” as part of the basis for the president’s assertion of privilege over documents

subpoenaed by the committee related to the administration’s plan to include a citizenship question on the

census); Letter from William P. Barr, Att’y Gen., U.S. Dep’t of Just., to President Donald J. Trump 3–5

(June 11, 2019) [hereinafter Census Assertion], https://int.nyt.com/data/documenthelper/1110-2019-6-

12-census-documents-not/21a262dafd7e6f6b7f12/optimized/full.pdf#page=1 [https://perma.cc/WWF3-

CVAZ] (separating attorney-client communications and attorney work-product from deliberative process

as a distinct component of executive privilege).

70. See, e.g., McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 709–10 (D.C. Cir. 2014); Jud.

Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 224–26 (D.C. Cir. 2013); Loving v. Dep’t of Def., 550

F.3d 32, 37–38 (D.C. Cir. 2008); Jud. Watch, Inc. v. Dep’t of Just., 365 F.3d 1108, 1109–10 (D.C. Cir.

2004).

71. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975); McKinley, 739 F.3d at

709; Jud. Watch, Inc. v. U.S. Secret Serv., 726 F.3d at 224–26; Loving, 550 F.3d at 37–38; Jud. Watch,

Inc. v. Dep’t of Just., 365 F.3d at 1109–10; Landry v. FDIC, 204 F.3d 1125, 1135–36 (D.C. Cir. 2000);

Dow Jones & Co. v. Dep’t of Just., 917 F.2d 571, 573–74 (D.C. Cir. 1990).

118 DUKE LAW JOURNAL [Vol. 70:nnn

the scope of those components of executive privilege.

Similarly, the

parameters of the attorney-client and work-product component are defined

by the executive branch through reference to case law.

And the executive

branch has often pointed to judicial precedents to establish the necessity or

scope of the component protecting national security information and

diplomatic material.

The law enforcement component is unique, however, because FOIA

litigation involving law enforcement information is not readily transferrable

to the corresponding “component” of executive privilege. A form of

common law evidentiary privilege for law enforcement information in civil

litigation arose in judicial decisions toward the second half of the twentieth

century, about the same time as the recognition of the deliberative process

privilege. It appears to have first originated with theories proposed by

executive branch officials outside the judicial context.

But, whereas the

common law deliberative process privilege is simply incorporated wholesale

by FOIA under the general exemption for evidentiary privileges recognized

in litigation,

the exemption for law enforcement information is delineated

not by the common law or history but by the statutory language of FOIA

72. See Assertion of Exec. Privilege Concerning the Special Couns.’s Interviews of the Vice

President & Senior White House Staff, 32 Op. O.L.C. 7, 9 n.2 (2008) [hereinafter Special Couns.

Assertion] (noting the Justice Department’s position on deliberative process “finds strong support in

various court decisions recognizing that the deliberative process privilege protects internal governmental

deliberations from disclosure in civil litigation”).

73. See Fast & Furious Assertion, supra note 28, at 4 (relying on the work-product doctrine as

described in Hickman v. Taylor, 329 U.S. 495, 510–11 (1947)); Confidentiality of the Att’y Gen.’s

Commc’ns, supra note 58, at 494–97 (relying on Upjohn Co. v. United States, 449 U.S. 383 (1981), and

others to analyze the attorney-client privilege between the president and attorney general).

74. See Reporting Act of 2008, supra note 66, at 14–15 (citing Department of the Navy v. Egan,

484 U.S. 518, 527 (1988), for the proposition that the President has authority to control the dissemination

of classified information); Whistleblower Prots. for Classified Disclosures, 22 Op. O.L.C. 92, 94 n.6

(1998) [hereinafter Whistleblower Prots.] (collecting cases that establish the president’s power over

national security and foreign affairs).

75. A general executive evidentiary privilege for law enforcement investigatory files did not exist

at common law, only a limited privilege to withhold an informer’s identity. Roviaro v. United States, 353

U.S. 53, 59 (1957) (citing Scher v. United States, 305 U.S. 251, 254 (1938); In re Quarles, 158 U.S. 532,

535–36 (1895); Vogel v. Gruaz, 110 U.S. 311, 316 (1884)); Stephen Wm. Smith, Policing Hoover’s

Ghost: The Privilege for Law Enforcement Techniques, 54 A

M. CRIM. L. REV. 233, 243 & n.94 (2017);

see also Scher, 305 U.S. at 254 (noting that “public policy forbids disclosure of an informer’s identity

unless essential to the defense”); William V. Sanford, Evidentiary Privileges Against the Production of

Data Within the Control of Executive Departments, 3 V

AND. L. REV. 73, 75–78 (1949) (discussing the

application of informers privilege in civil and criminal cases). FBI Director J. Edgar Hoover advocated

for a general privilege, however, see John Edgar Hoover, The Confidential Nature of FBI Reports, 8

YRACUSE L. REV. 2, 2–3 (1956), and Congress adopted a FOIA exemption for investigatory files,

Freedom of Information Act, Pub. L. No. 90-23, § (b)(7), 81 Stat. 54, 55 (1967) (codified as amended

at 5 U.S.C. § 552(b)(7) (2018)).

76. 5 U.S.C. § 552(b)(5).

2020] THE EXECUTIVE’S PRIVILEGE 119

itself.

Moreover, unlike national security and diplomatic information, there

is not a robust body of judicial precedent about the scope of the privilege.

Thus, although the scope of the deliberative process component of

executive privilege has been somewhat defined, and circumscribed, by FOIA

precedent,

the same is not true for the law enforcement component. That

component has been largely defined by reference to historical examples of

the executive branch resisting congressional attempts to gain access to law

enforcement files and first-principles reasoning about the need to restrict

access to these documents.

One area in which the scope of the doctrine has

been controversial is in prosecutorial documents, particularly the

determination of whether or not to prosecute individuals,

and the executive

branch has relied on both the deliberative process and law enforcement

component to claim authority to withhold those documents.

There has also

been substantial controversy over whether the law enforcement component

is limited to “pending investigations,” as articulated by Rehnquist,

whether—as the executive branch now contends—it extends equally to

closed matters.

4. Showing of Need Necessary To Overcome Various Components.

Each of the evidentiary privileges on which the components of executive

privilege are based has a distinct balancing test. For example, in the judicial

77. Id. § 552(b)(7); Off. of Info. Policy, FOIA Guide, 2004 Edition: Exemption 7, U.S. DEP’T OF

JUST. (2004), https://www.justice.gov/oip/foia-guide-2004-edition-exemption-7 [https://perma.cc/7C4K-

5EUN].

78. Perhaps because criminal law enforcement as a significant federal pursuit arose later in the

history of the country, the recognition of a need for confidentiality in law enforcement investigations is a

more recent addition to the common law of government privileges that protects national security

information and diplomatic material.

79. See supra notes 70–72 and accompanying text.

80. See Assertion of Exec. Privilege in Response to Cong. Demands for L. Enf’t Files, 6 Op. O.L.C.

31, 32 (1982) (“[I]t has been the policy of the Executive Branch throughout this Nation’s history generally

to decline to provide committees of Congress with access to or copies of law enforcement files except in

the most extraordinary circumstances.”); Linder Letter, supra note 41, at 3–5 (describing the

Department’s position on oversight over open law enforcement matters).

81. See Assertion of Exec. Privilege with Respect to Prosecutorial Documents, 25 Op. O.L.C. 1, 1–

2 (2001).

82. Id. at 2–3.

83. Executive Privilege Hearings, supra note 1, at 431 (statement of William H. Rehnquist,

Assistant Att’y Gen., Office of Legal Counsel, United States Department of Justice); see also Linder

Letter, supra note 41, at 3–5 (discussing the rationale for protecting information in “open matters”).

84. See Special Couns. Assertion, supra note 72, at 10 (“Although the law enforcement component

of executive privilege is more commonly implicated when Congress seeks materials about an open

criminal investigation, the separation of powers necessity of protecting the integrity and effectiveness of

the prosecutorial process continues after an investigation closes.” (citing Indep. Couns. Act, supra note

58, at 77)).

120 DUKE LAW JOURNAL [Vol. 70:nnn

context, the deliberative process privilege is analyzed pursuant to an “ad

hoc” balancing test that weighs a number of factors.

The privilege is

generally not that difficult to overcome.

Attorney-client privilege,

however, is absolute when it applies and cannot be overcome by any showing

of need.

Attorney work-product information must be disclosed only if the

party seeking the information can show “substantial need and inability to

obtain the equivalent without undue hardship.”

The state secrets privilege

has also been described as absolute, no matter the needs of the other side; a

litigant who cannot prove a claim without access to classified national

security information is simply out of luck.

The executive branch discards these respective balancing tests in the

context of executive privilege, however, and asserts that a single balancing

test applies to every invocation of executive privilege against Congress no

matter the specific component of privilege on which the assertion is based.

When the president invokes his constitutionally based executive privilege

against a congressional demand, neither the specific component into which

the information falls nor the judicial precedent establishing the balancing

inquiry matters. The fact that each of the components of executive privilege

exists as an independent evidentiary privilege in the context of judicial

proceedings is irrelevant. In the executive branch’s view, to overcome an

Executive’s assertion of his constitutional privilege, a congressional

committee must meet the high standard adopted in Senate Select Committee

on Presidential Campaign Activities v. Nixon

by demonstrating that the

documents are “demonstrably critical to the responsible fulfillment of the

Committee’s functions.”

If the president has determined the information cannot be disclosed

without harming the public interest, then that determination carries the same

85. In re Sealed Case (Espy), 121 F.3d 729, 737–38 (D.C. Cir. 1997) (per curiam).

86. See Texaco P.R., Inc. v. Dep’t of Consumer Affs., 60 F.3d 867, 885 (1st Cir. 1995) (discussing

the discretionary nature of the deliberative process privilege).

87. See Swidler & Berlin v. United States, 524 U.S. 399, 407–11 (1998) (explaining the importance

of attorney-client privilege and declining to narrow its application).

88. Upjohn Co. v. United States, 449 U.S. 383, 400 (1981).

89. See generally Laura K. Donohue, The Shadow of State Secrets, 159 U.

PA. L. REV. 77 (2010)

(cataloging the development and doctrine of the state secrets privilege and describing it as “cast[ing a]

longer and broader” shadow “than previously acknowledged”).

90. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir.

1974) (en banc).

91. Special Couns. Assertion, supra note 72, at 11–12 (emphasis added) (quoting Senate Select, 498

F.2d at 731). The Senate Select standard applies to all claims of executive privilege, no matter the specific

component implicated. See id. at 9–12 (applying the Senate Select standard to “presidential

communications and deliberative process components of executive privilege” as well as “the law

enforcement component of executive privilege”).

2020] THE EXECUTIVE’S PRIVILEGE 121

constitutional weight. The relative strength of the interest he is protecting—

such as national security versus deliberations over how to respond to a

congressional request for information—is irrelevant to the showing

necessary to overcome that privilege. For example, the executive order on

presidential records issued by President Bush stated that Nixon required any

party seeking to overcome any of these constitutional privileges to “establish

at least a ‘demonstrated, specific need’” for particular records.

And each

invocation of executive privilege by Presidents Obama and Trump made the

same claim.

The standard is a high one, and every assertion of executive

privilege has concluded that the relevant congressional committee has not

met that standard because the committee could have theoretically performed

its legislative task without access to the specific information over which the

president had been asserting privilege.

B. The President’s Sole Prerogative: Asserting Executive Privilege and

Controlling Information

The next doctrinal pillar of the executive branch’s doctrine of executive

privilege is the assertion that the president—and the president alone—has

inherent constitutional authority to control all information that potentially

fits within the scope of these components.

Presidential control appears to

have originated as a matter of procedure and policy but has since expanded

into a claim of absolute constitutional authority. In 1962, President Kennedy

provided a letter to a congressional committee stating that “executive

privilege can be invoked only by the President and will not be used without

specific Presidential approval.”

Presidents Johnson and Nixon reaffirmed

92. Exec. Order No. 13,233, 66 Fed. Reg. 56,025, 56,026 (Nov. 5, 2001) (quoting United States v.

Nixon, 418 U.S. 683, 713 (1974)).

93. See, e.g., Fast & Furious Assertion, supra note 28, at 5; Census Assertion, supra note 69, at 6.

94. See, e.g., Census Assertion, supra note 69, at 6–7 (finding that the priority documents

subpoenaed by the committee related to the decision to include the citizenship question on the census

were not “necessary predicates to Congress’s enactment of legislation regarding the census” and thus did

not meet the Senate Select standard).

95. See Attempted Exclusion of Agency Couns., supra note 3, at 2 (“We concluded that Congress

may not compel an executive branch witness to appear without agency counsel and thereby compromise

the President’s constitutional authority to control the disclosure of privileged information and to supervise

the Executive Branch’s communications with congressional entities.”); Reporting Act of 2008, supra note

66, at 15 (citing Department of the Navy v. Egan, 484 U.S. 518, 527 (1988), for the proposition that the

President has authority to control the dissemination of classified information); Mexican Debt Disclosure

Act, supra note 40, at 269 (“The President’s constitutional authority to control the disclosure of

documents and information relating to diplomatic communications has been recognized since the

beginning of the Republic.”).

96. See Executive Privilege Hearings, supra note 1, at 2 (statement of Sen. Sam J. Ervin, Jr.,

Chairman, S. Subcomm. on Separation of Powers) (quoting Letter from President John F. Kennedy, to

122 DUKE LAW JOURNAL [Vol. 70:nnn

that policy,

and the foundational Reagan memorandum on executive

privilege, which has been adopted by each subsequent administration,

stipulates that “executive privilege shall not be invoked without specific

Presidential authorization.”

Congress has signaled approval of this limitation, as evidenced in

proposed legislation that provided: “In no case shall an employee of the

executive branch appearing before the Congress . . . assert executive

privilege unless the employee present . . . a statement signed personally by

the President requiring that the employee assert executive privilege.”

That

failed legislation sought to ensure that lower executive branch officials did

not have the authority to assert privilege to stymie congressional requests for

information. Any assertion would have needed to be made by the president

and would have required an expenditure of his political capital. The

limitation of the privilege to the president has not been the subject of

controversy, and congressional committees currently accommodate that

limitation by asking witnesses to consult with the White House to see if the

president intends to assert privilege before testifying.

100

As articulated by Rehnquist and in the Reagan memorandum, the

modern executive privilege doctrine originally envisioned a screening

process during which lower executive branch officials would determine

whether certain information potentially warranted an executive privilege

claim—that is, whether the information, if disclosed, would cause

identifiable harm to a specific national interest. In congressional testimony,

Rehnquist explained that the president “expects the responsible heads of the

agencies to whom [congressional] requests are addressed to make some sort

of a tentative determination as to whether some of the information requested

might warrant a claim of executive privilege.”

101

The Reagan memorandum

directs that “[c]ongressional requests for information [] be complied with as

John E. Moss, Chairman, Special Gov’t Info. Subcomm. of the Comm. on Gov’t Operations (Mar. 7,

1962), http://www.johnemossfoundation.org/foi/from_jfk.htm [https://perma.cc/8DYM-MVW9]).

97. Id. at 2–3.

98. Reagan Memorandum, supra note 27, at 1.

99. Executive Privilege Hearings, supra note 1, at 7 (statement of Sen. Sam J. Ervin, Jr., Chairman,

S. Subcomm. on Separation of Powers) (omission in original) (quoting S. 1125, 92d Cong. (1971)).

100. See, e.g., Letter from Jerrold Nadler, Chairman, House Comm. on the Judiciary, to Matthew

Whitaker, Acting Att’y Gen., U.S. Dep’t of Just. 1 (Jan. 22, 2019) [hereinafter Nadler Letter],

https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/

1.22.2018%20letter%20to%20whitaker.pdf [https://perma.cc/9HD3-898J] (advising the acting attorney

general that the committee would be questioning him about presidential communications in an upcoming

hearing and requesting that he notify the committee in advance if the president planned to assert executive

privilege).

101. Executive Privilege Hearings, supra note 1, at 441 (statement of William H. Rehnquist,

Assistant Att’y Gen., Office of Legal Counsel, United States Department of Justice).

2020] THE EXECUTIVE’S PRIVILEGE 123

promptly and as fully as possible, unless it is determined that compliance

raises a substantial question of executive privilege.”

102

Most importantly, it

clarifies that a “‘substantial question of executive privilege’ exists if

disclosure of the information requested might significantly impair the

national security . . . , the deliberative processes of the Executive Branch, or

other aspects of the performance of the Executive Branch’s constitutional

duties.

103

Thus, both Rehnquist and Reagan described an initial agency

analysis of whether an executive privilege claim may be appropriate based

on concrete harm that could result from disclosure. That initial screening

remained tied to the understanding of executive privilege as the president’s

limited constitutional authority to intervene and forbid disclosure of specific

information when concrete, identified harm would result.

The current executive branch doctrine has expanded the underlying

constitutional authority significantly, describing it not as the limited

authority to prevent the disclosure of specific information the disclosure of

which would cause identifiable harm but as an affirmative constitutional

authority to control the dissemination of all information that potentially

implicates one of the “components” of executive privilege.

104

The executive

branch has now conflated the broad scope of its various components of

executive privilege with the situational “public interest” that historically

cabined executive privilege assertions. As a result, its doctrine asserts that

the president has the affirmative authority to control the dissemination of all

information that potentially falls within the broad scope of these various

components. Any attempt to undermine that authority—even if it is a largely

benign statutory reporting requirement—is an unconstitutional interference

with that affirmative, and absolute, presidential authority. The initial

screening by lower executive branch officials looks at whether the

subpoenaed information falls within the scope of any of the components of

executive privilege, not at the potential harm caused by disclosure of specific

information. In other words, current executive branch doctrine assumes that

any disclosure of material falling within the scope of the various components

would “significantly impair” the national interest. As a result, only the

president can determine whether or not it may be disclosed to Congress or to

the public.

The theory has never been expounded fully in public documents, but it

appears to derive from the executive branch’s view that the president has

102. Reagan Memorandum, supra note 27, at 1–2.

103. Id.

104. See Attempted Exclusion of Agency Couns., supra note 3, at 8 (concluding that the committee’s

exclusion of agency counsel “unconstitutionally interferes with the President’s right to control the

disclosure of privileged information” (emphasis added)).

124 DUKE LAW JOURNAL [Vol. 70:nnn

ultimate control over the dissemination of all national security information.

In 1998, then-Deputy Assistant Attorney General at OLC Randolph Moss

provided testimony to the House Intelligence Committee that analyzed the

historical examples of presidents withholding national security information

and concluded that a bill allowing whistleblowers in the intelligence

community to provide classified information directly to Congress was

unconstitutional.

105

The Moss testimony, in a footnote, also recognized that

“other constitutionally-based confidentiality interests can be implicated by

employee disclosures to Congress.”

106

In a previous Statement of

Administration Policy on that same bill, the Clinton administration asserted

that Congress could not “vest lower-ranking personnel in the Executive

branch with a ‘right’ to furnish national security or other privileged

information.”

107

In 2004, OLC Assistant Attorney General Jack Goldsmith relied on that

language, as well as the developing doctrine of executive privilege and the

expansion of its components, to conclude that the position that Congress may

not vest executive branch employees with a right to provide information to

Congress is “not limited to classified information, but extend[s] to all

deliberative process or other information protected by executive

privilege.”

108

Although these opinions dealt principally with statutory

reporting requirements and whistleblower rights, they have ultimately

formed a cohesive doctrine that the president has the right “to control the

disclosure of privileged information.”

109

By “privileged information,” the

executive branch means everything that potentially fits within one of the

components. The executive branch routinely, in private correspondence,

Statements of Administration Policy, and other communications, raises

constitutional objections to proposed legislation that attempts to control the

dissemination of information potentially protected by executive privilege.

110

105. Whistleblower Prots., supra note 74, at 92, 94–99.

106. Id. at 101 n.34.

107. O

FF. OF MGMT. & BUDGET, EXEC. OFF. OF THE PRESIDENT, STATEMENT OF ADMINISTRATION

POLICY: S. 1668 – DISCLOSURE TO CONGRESS ACT OF 1998 (1998) (emphasis added),

https://clintonwhitehouse3.archives.gov/OMB/legislative/sap/105-2/S1668-s.html [https://

perma.cc/6T9J-4X4P]. Statements of Administration Policy or “SAPs” are formal statements of an

administration’s position on pending legislation issued by the Office of Management and Budget on

behalf of the Executive Office of the President. See generally M

EGHAN M. STUESSY, CONG. RSCH. SERV.,

R44539, STATEMENTS OF ADMINISTRATION POLICY (2016) (explaining the history and evolution of

SAPs).

108. Auth. of Agency Offs., supra note 3, at 81.

109. Attempted Exclusion of Agency Couns., supra note 3, at 9.

110. See, e.g., O

FF. OF MGMT. & BUDGET, EXEC. OFF. OF THE PRESIDENT, STATEMENT OF

ADMINISTRATION POLICY: H.R. 4909 – NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR

2017 (2016), https://www.presidency.ucsb.edu/documents/statement-administration-policy-hr-4909-

national-defense-authorization-act-for-fiscal-year [https://perma.cc/LK6U-H8X9] (objecting to a

2020] THE EXECUTIVE’S PRIVILEGE 125

II. THE PRACTICE OF EXECUTIVE PRIVILEGE: CONGRESSIONAL IMPOTENCE

AND THE

PROPHYLACTIC EXECUTIVE PRIVILEGE

The executive branch’s doctrine of executive privilege informs every

aspect of congressional oversight even if its ubiquity is often unrecognized

or unacknowledged. Both congressional oversight authority and executive

privilege are implied constitutional authorities, with limited textual mooring

and scant precedential definition. The historical interplay of these implicit

authorities offers a prime example of the ways in which, in the absence of

judicial resolution, the constitutional authorities of one branch evolve to

remain an operative check on another branch’s asserted constitutional

authority in a never-ending game of one-upmanship. As Thomas Jefferson

observed,

The intention of the Constitution, that each branch should be independent

of the others, is further manifested by the means it has furnished to each, to

protect itself from enterprises of force attempted on them by the others, and

to none has it given more effectual or diversified means than to the

executive.

111

As Part II demonstrates, however, the balance has now shifted

definitively to the executive branch’s favor, largely because of the doctrine

set out in Part I. In practice, the executive branch doctrine has proved a

difficult—potentially an impossible—“enterprise of force” for Congress to

surmount if the president is willing to play constitutional hardball. The

doctrine renders Congress virtually impotent to enforce information requests

against the executive branch, despite the theoretical availability of

mechanisms to force compliance.

The executive branch doctrine uses an undifferentiated interest in

confidentiality across the “components” of executive privilege to provide the

executive branch the authority to delay responses and refuse requests for

information without ever having to undertake what has historically been the

core of the executive privilege inquiry: a determination of whether the

disclosure of specific information would harm a specific public interest.

requirement to report certain military information to Congress because it involved “sensitive national

security information protected by executive privilege”); O

FF. OF MGMT. & BUDGET, EXEC. OFF. OF THE

PRESIDENT, STATEMENT OF ADMINISTRATION POLICY: H.R. 2596 – INTELLIGENCE AUTHORIZATION ACT

FOR

FY 2016 (2015), https://www.presidency.ucsb.edu/documents/statement-administration-policy-hr-

2596-intelligence-authorization-act-for-fy-2016 [https://perma.cc/R666-5EUT] (noting that particular

reporting requirements “would require burdensome and unnecessary reporting to Congress and could

interfere with the President’s authority to protect sensitive national security information”); Presidential

Statement on Signing the Fraud Enforcement and Recovery Act of 2009, 1 P

UB. PAPERS 689 (May 20,

2009) (noting the administration would construe a requirement that executive branch agencies provide

information to a legislative entity “not to abrogate any constitutional privilege”).

111. 10

THE WORKS OF THOMAS JEFFERSON 404 n.1 (Paul Leicester Ford ed., 1905).

126 DUKE LAW JOURNAL [Vol. 70:nnn

Moreover, the executive branch has developed a number of “prophylactic”

doctrines to protect the president’s asserted constitutional authority to

control this information. Unlike an assertion of executive privilege itself,

prophylactic doctrines are not qualified. No showing of need can overcome

them. And any burden that Congress imposes on the president’s

constitutional authority is per se unconstitutional under these prophylactic

doctrines.

The practical result is a new prophylactic executive privilege that

provides the executive branch with the authority to ignore and countermand

congressional subpoenas without the president ever asserting executive

privilege and without any need to undertake the balancing inquiry at the heart

of the privilege.

A. The Ubiquity of Executive Privilege in Congressional Oversight

Executive privilege is rarely mentioned in the course of congressional

oversight. But the executive branch’s expansive doctrine of the privilege is

the ultimate driver underlying almost every exchange between the two

branches. Former executive branch and congressional lawyer Andrew

McCanse Wright argues “that Congress and the Executive operate with

fundamentally different views of the Constitution when it comes to

congressional oversight.”

112

In his view, Congress relies on a litigation

perspective, the hallmarks of which are a sense of hierarchy—with Congress

above the executive branch—and entitlement.

113

The executive branch, by

contrast, relies on a transactional model, characterized by equality and

accommodation.

114

He notes that Congress employs investigative and

litigation terms such as “investigation,” “deposition,” “subpoena,” and

“contempt,” and ultimately expects that “it is entitled to the same sort of

interbranch submission” that the executive branch displays toward the

judicial branch in the context of judicial proceedings.

115

The executive

branch, on the other hand, approaches oversight as a negotiation between

coequal parties, undertaken without a neutral arbiter, and seeking to balance

the interests of the two parties.

116

At the core of the executive branch doctrine

112. Constitutional Conflict, supra note 7, at 914.

113. Id. at 915–20.

114. Id. at 920–24.

115. Id. at 915, 918.

116. Id. at 921.

2020] THE EXECUTIVE’S PRIVILEGE 127

is the statement in United States v. AT&T

117

that each branch has a

“constitutional mandate” to accommodate the other branch’s interests.

118

Wright insightfully describes the two basic approaches to the oversight

process. But there is an additional layer to the story that is not immediately

apparent. These differing approaches originate in the differing constitutional

doctrines of executive privilege. As Wright explains, when oversight

disputes escalate—whether for political, institutional, or policy reasons—the

language of constitutional conflict emerges and legal positions begin to

solidify.

119

But even before that, from the time an initial request arrives with

a federal agency, the two competing doctrines of executive privilege are, in

reality, the primary impetus for the nature of the response and the differing

approaches.

To understand why, it is useful to separate requests sent to an agency or

department—such as the Department of Justice or EPA—from a request sent

directly to the White House. Typically, a congressional request will seek a

broad swath of information—including internal emails, memoranda, and

draft documents—about a particular subject. For example, subsequent to a

letter seeking similar documents, the Republican chair of the House

Committee on Science, Space and Technology sent a subpoena to the

National Oceanic and Atmospheric Administration (NOAA) during the

Obama administration demanding “[a]ll documents and communications

between or among employees” of NOAA “referring or relating to” three

different topics relevant to a recent climate change study.

120

One of the initial

letters to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)

that represented the beginning of the investigation into Operation Fast &

117. United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).

118. Id. at 127. This quote from AT&T appears repeatedly in executive branch opinions and letters

to Congress, including in almost every formal assertion of executive privilege. See, e.g., Attempted

Exclusion of Agency Couns., supra note 3, at 7 (finding that applying Committee Rule 15(e) to compel

executive branch testimony would violate an “implicit constitutional mandate to seek optimal

accommodation through a realistic evaluation of the needs of the conflicting branches” (quoting AT&T,

567 F.2d at 127)); Testimonial Immunity Before Cong. of the Former Couns. to the President, 43 Op.

O.L.C., slip op. at 17 (May 20, 2019) [hereinafter McGahn Immunity Opinion] (concluding that applying

a waiver of the former counsel’s immunity because of public statements “would severely hinder the ‘spirit

of dynamic compromise’ and ‘implicit constitutional mandate to seek optimal accommodation’ that

currently facilitates resolution of inter-branch disputes over information” (quoting AT&T, 567 F.2d at

127)).

119. Constitutional Conflict, supra note 7, at 929–30.

120. Subpoena from Lamar Smith, Chairman, House Comm. on Sci., Space, & Tech., to Kathryn

Sullivan, Adm’r, Nat’l Oceanic & Atmospheric Admin. 3 (Oct. 13, 2015),

https://www.documentcloud.org/documents/2488946-10-13-15-subpoena-from-house-science-

committee.html [https://perma.cc/HQR2-LAE3].

128 DUKE LAW JOURNAL [Vol. 70:nnn

Furious and the death of a ATF border patrol agent

121

sought a wide range

of documents and information from ATF.

122

The subsequent request and

subpoena to Attorney General Eric Holder set out twenty-two categories of

documents, many of which covered “[a]ll documents and communications”

involving particular individuals or related to broad subject areas.

123

The

requests and subpoenas of the Democratic-controlled House to the Trump

administration regarding the inclusion of the citizenship question on the

census and the Mueller Report and underlying documents were similarly

broad.

124

The agency oversight personnel, typically composed of members of the

General Counsel’s Office and legislative affairs personnel, will review the

request and determine what the scope of the request actually is in terms of

real documents, emails, and information. If the congressional request

potentially encompasses deliberative communication, which is almost

always the case given the broad scope of the requests, or other confidential

information, such as national security, law enforcement, or attorney-client

information, the oversight personnel will often consult with OLC and the

White House Counsel’s Office. They make them aware of the request and its

potential to implicate information the executive branch considers to be

protected by executive privilege, particularly when the subject area or the

documents encompassed by the request are politically sensitive.

The agency’s letter back to the committee or subcommittee will

acknowledge the request, indicate a willingness to cooperate, and, if the

request potentially touches on components of executive privilege, will state

121. See Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 5–6 (D.D.C. 2013)

(providing background on Operation Fast & Furious and the congressional investigation).

122. See Letter from Darrell Issa, Chairman, House Comm. on Oversight & Gov’t Reform, to

Kenneth E. Melson, Acting Dir. of the Bureau of Alcohol, Tobacco, Firearms, & Explosives 3 (Mar. 16,

2011), https://republicans-oversight.house.gov/wp-content/uploads/2012/08/March-16-2011-Issa-to-

Melson.pdf [https://perma.cc/5JZX-UBYN].

123. See H.R.

REP. NO. 112-546, at 15–21 (2012) (setting out the subpoena’s document requests).

124. See, e.g., Subpoena from Jerrold Nadler, Chairman, House Comm. on the Judiciary, to William

P. Barr, Att’y Gen., U.S. Dep’t of Just., 3 (Apr. 18, 2019), https://int.nyt.com/data/documenthelper/776-

read-the-subpoena-mueller-report/8431536bd6552926c11e/optimized/full.pdf#page=1

[https://perma.cc/NB6D-EAVK] (seeking the complete unredacted Mueller Report, “[a]ll documents

referenced in the Report,” and “[a]ll documents obtained and investigative materials created by the

Special Counsel’s Office”); Letter from Elijah E. Cummings, Chairman, House Comm. on Oversight &

Gov’t Reform, to Wilbur L. Ross, Jr., Sec’y, U.S. Dep’t of Com. 2 (Jan. 8, 2019),

https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2019-01-08.EEC%20to%20Ross-

DOC%20re%20Citizenship%20Question.pdf [https://perma.cc/LE67-W3JB] (requesting “[a]ll”

documents and communications in six categories related to the inclusion of the citizenship question); see

also Jonathan Shaub, What Is a ‘Protective’ Assertion of Executive Privilege?, L

AWFARE (May 8, 2019,

8:23 PM) [hereinafter ‘Protective’ Assertion], https://www.lawfareblog.com/what-protective-assertion-

executive-privilege [https://perma.cc/6LR3-6ZAQ] (describing the broad request for the Mueller Report

documents).

2020] THE EXECUTIVE’S PRIVILEGE 129

that the agency hopes to “accommodate” the oversight interests of the

committee or subcommittee in a manner consistent with the executive

branch’s “confidentiality interests” and the “implicit constitutional mandate”

of AT&T to negotiate in good faith.

125

Often, the precise language used in

the letter has been reviewed or edited by OLC or the White House.

The reason that the two models emerge at this stage is the direct result

of the competing doctrines of executive privilege. The executive branch

understands the executive to have the constitutional privilege to ultimately

decline to produce those documents that implicate “confidentiality interests,”

a euphemism for privilege—or, more accurately, the components it

understands to comprise the doctrine of executive privilege. Thus, the

executive branch begins the process by noting the underlying existence of

what it understands to be protected by executive privilege, but offers to

accommodate Congress’s interests, recognizing, of course, that executive

privilege is a last resort. This is the “accommodation” process,

126

the “dance

that takes place between legislative and executive interests over information

access[.]”

127

The “dance” begins with a congressional request that

encompasses some information that would fall within the scope of the

executive branch’s understanding of executive privilege.

Congress, on the other hand, does not recognize any constitutional

privilege to withhold that type of information, even if the president himself

had already asserted such a privilege. Congress believes itself to be “entitled”

to the information, in Wright’s words,

128

not because of a model of oversight

that places it in a superior constitutional status over the executive branch in

information disputes but because of its constitutional doctrine of executive

privilege. In its view, a congressional committee sending an oversight

request—or demand—is exercising a constitutional authority that takes

precedence over common law privileges.

129

And because all of the

components of executive privilege—aside from the presidential

communications privilege—are ultimately grounded in historical practice or

common law, Congress’s oversight request takes precedence over those

components.

130

The hierarchical view that Professor Wright ascribes to

125. United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 1977).

126. See Barr Memorandum, supra note 27, at 157–61; Reagan Memorandum, supra note 27, at 1.

127. Devins, supra note 9, at 137.

128. Constitutional Conflict, supra note 7, at 916.

129. See A

LISSA M. DOLAN, ELAINE L. HALCHIN, TODD GARVEY, WALTER J. OLESZEK & WENDY

R. GINSBERG, CONG. RSCH. SERV., RL30240, CONGRESSIONAL OVERSIGHT MANUAL 45–49 (2014)

(discussing the House Committee on Oversight and Government Reform’s argument during the Fast and

Furious investigation that “common law privilege cannot shield the disclosure of documents that are

subject to a constitutionally-rooted subpoena”).

130. See id. at 45 (“Congress is generally not required to recognize common law privileges.”).

130 DUKE LAW JOURNAL [Vol. 70:nnn

Congress is ultimately not about Congress and the executive branch as a

whole, but about the distinction between constitutional authority and

common law privileges.

That the competing notions of executive privilege ultimately drive the

entire oversight process is confirmed by the way in which Congress

approaches oversight of the president and the White House. After Nixon,

Congress recognized that presidential communications enjoy presumptive

protection and does not demand them as a right. For example, Trey Gowdy,

chairman of the Benghazi Select Committee, not known for its favor toward

the Obama administration, noted in an information request that he “was

familiar with and would respect the Executive Privilege attached to certain

communications with the President.”

131

And the requests to Trump

administration officials about presidential communications were similarly

respectful of that privilege, even from members of the opposing party.

132

The

letters either expressly or implicitly acknowledged that Congressis not

automatically “entitled” to presidential communications and must at least

provide the executive branch an opportunity to assert executive privilege.

Congress thus adopts the litigation model described by Wright only

when it believes executive privilege is not potentially applicable. The

executive branch similarly adopts its transactional approach only when it

believes that executive privilege could potentially be applicable. But because

of the broad scope of the various components, the executive branch

understands executive privilege to be potentially applicable to almost every

request. Accordingly, it almost exclusively employs the transactional model

of negotiation. Conversely, because Congress understands executive

privilege to apply only to a narrow set of presidential communications and

not to other internal executive branch communications,

133

it adopts the

hierarchical model in all such interactions. The models are driven by the

difference in constitutional doctrine about the scope of executive privilege,

not the respective authorities of the two branches over information.

Of course, a committee or subcommittee that makes it a priority to get

specific information and responds quickly to letters may accelerate this

131. Letter from Trey Gowdy, Chairman, House Select Comm. on Benghazi, to W. Neil Eggleston,

White House Couns. 1 (June 7, 2016), https://archives-benghazi-republicans-

oversight.house.gov/sites/republicans.benghazi.house.gov/files/documents/App%20C%20Questions%2

0to%20POTUS.pdf [https://perma.cc/X43K-LZQE].

132. For example, the newly installed Democratic House Judiciary Chairman wrote to the acting

attorney general on January 22, 2019, to advise him that the committee would be questioning him about

presidential communications in an upcoming hearing and to request that he notify the committee in

advance if the president planned to assert executive privilege. See Nadler Letter, supra note 100, at 1.

The letter acknowledges that some of the “questions may conceivably implicate executive privilege.” Id.

133. See P

RESIDENTIAL CLAIMS OF EXECUTIVE PRIVILEGE, supra note 39, at 21–23; see also Fast &

Furious Assertion, supra note 28, at 3–4, 8.

2020] THE EXECUTIVE’S PRIVILEGE 131

process.

134

But that requires knowledge of what documents or information

exist as well as the use of political capital and the committee’s time. In

current practice, the initial stages in all but the most routine oversight

ultimately lead to frustration at the delay—particularly in divided

government, when a lack of trust makes good-faith negotiations more

difficult. Accordingly, Congress has turned to hardball, asserting its legal

right to materials. In the current state of affairs, however, it lacks any

authority to enforce those demands as both a legal and a practical matter.

B. Congressional Impotence

In the context of congressional requests for information from the

executive branch, subpoenas and lawsuits were rare—almost nonexistent. In

his 1996 work on congressional–executive information disputes, for

example, Professor Neal Devins recognized the “‘burgeoning of

congressional staff and oversight’” but noted that “[d]espite th[e] changing

culture, however, Congress rarely makes use of its subpoena power.”

135

Today, that is no longer true. Subpoenas are commonplace and, when issued

to the executive branch, largely meaningless as a practical matter aside from

the rhetorical force of the word “subpoena.”

136

The same could be said of

staff depositions, oversight of response to oversight, and civil litigation to

enforce oversight requests. All of them were either rare or previously

unknown. But each has developed as a mechanism by which Congress

attempts to counteract the executive branch’s expanding doctrine of

executive privilege. Ultimately, however, Congress lacks any real

mechanism for enforcing its constitutional oversight authority over the

executive branch.

The development of these oversight tools—and accompanying

constitutional doctrines about the authority of each branch—have resulted

from an increasingly aggressive game of constitutional hardball. Congress,

134. See ‘Protective’ Assertion, supra note 124 (arguing that the House Judiciary Committee had

erred in issuing a subpoena for a broad swath of documents that included law enforcement and classified

information and then attempting to force rapid compliance). Congressional committees typically issue

extremely broad document requests, however, which leads the executive branch to first provide the “low-

hanging” fruit—public documents that are responsive to the subpoena. See H.R.

REP. NO. 114-887, at 80

(2016) (noting that the Department of Health & Human Services turned over “several hundred pages of

publicly available documents” in response to a subpoena); H.R.

REP. NO. 112-546, at 4, 12, 30–31(2012)

(criticizing the Department of Justice for turning over publicly available documents, some of which had

already been provided to the committee).

135. Devins, supra note 9, at 114 (quoting Shane, supra note 9, at 463–64).

136. See Declaration of Paul P. Colborn, Special Counsel, Office of Legal Counsel, United States

Department of Justice at 3–4, Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C.

2013) (No. 1:12-cv-1332) [hereinafter Colborn Declaration] (explaining that the executive branch does

not adhere to subpoena return dates but simply continues to negotiate about the information request).

132 DUKE LAW JOURNAL [Vol. 70:nnn

stymied by the executive branch’s doctrine of executive privilege, creates or

repurposes new tools of enforcement. The executive branch, in turn,

develops new constitutional doctrines to counter those tools. As a result, in

current practice, the executive branch has essentially unchecked authority to

withhold any piece or category of information it chooses from Congress.

1. Congress’s Tools of Inquiry. Whether through subpoenas or other

actions, each house of Congress has long asserted the authority to request or

compel the production of documents or testimony necessary to its function.

In a series of cases, the Supreme Court has affirmed this implicit authority

to demand information as “an indispensable ingredient” of Congress’s

legislative powers.

137

In McGrain v. Daugherty,

138

the Court recognized

Congress’s authority to conduct oversight and issue subpoenas, so it could

efficiently . . . exercise a legislative function belonging to it under the

Constitution.”

139

And, in Barenblatt v. United States,

140

the Court

characterized the authority to compel a response to a congressional

information request “as penetrating and far-reaching as the potential power

to enact and appropriate under the Constitution.”

141

Most recently, in Trump

v. Mazars USA, LLP,

142

the Supreme Court noted that the “congressional

power to obtain information is ‘broad’ and ‘indispensable.’”

143

Initially, each house typically exercised this authority either by

appointing an investigative committee and expressly authorizing it to

summon the necessary persons, papers, and records

144

or by passing a

resolution—called a resolution of inquiry in the House

145

—that requested

information from the president or directed agency heads to provide

137. Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 505 (1975).

138. McGrain v. Daugherty, 273 U.S. 135 (1927).

139. Id. at 160.

140. Barenblatt v. United States, 360 U.S. 109 (1959).

141. Id. at 111. Similarly, the Court in Watkins v. United States, 354 U.S. 178 (1957) stated:

The power of the Congress to conduct investigations is inherent in the legislative process. That

power is broad. It encompasses inquiries concerning the administration of existing laws as

well as proposed or possibly needed statutes. It includes surveys of defects in our social,

economic or political system for the purpose of enabling the Congress to remedy them. It

comprehends probes into departments of the Federal Government to expose corruption,

inefficiency or waste.

Id. at 187.

142. Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).

143. Id. at 2031 (quoting Watkins, 354 U.S. at 187).

144. See 3 A

NNALS OF CONG. 493 (1792) (approving a resolution that established a committee to

“inquire into the causes of the failure of the late expedition under Major General St. Clair” and

empowered it “to call for such persons, papers, and records, as may be necessary to assist their inquiries”).

145. See C

HRISTOPHER M. DAVIS, CONG. RSCH. SERV., RL31909, HOUSE RESOLUTIONS OF INQUIRY

1–4 (2009) [hereinafter H

OUSE RESOLUTIONS OF INQUIRY] (discussing the history of resolutions of

inquiry).

2020] THE EXECUTIVE’S PRIVILEGE 133

information.

146

The first House rule that dealt expressly with requesting

information from the executive branch was adopted in 1820 and

distinguished between information requests to the president and to agency

heads.

147

Passed in response to concerns that the House was not giving

sufficient consideration to such requests before sending them,

148

it required

a one-day delay for any “proposition, requesting information from the

President of the United States, or directing it to be furnished by the Secretary

of either of the Executive Departments, or the Postmaster General.”

149

Resolutions of inquiry receive privileged attention in the House and, for that

reason, are still used today, typically by members of the minority party.

150

The Senate passed a resolution establishing its first legislative inquiry in

1859, creating the Select Committee to Inquire into the Facts of the Recent

Invasion and Seizure of the United States Armory at Harper’s Ferry and

giving it the authority “to send for persons and papers.”

151

The early practice was for the body as a whole—either the House or

Senate—to call for information directly or to create a temporary committee

to pursue a specific investigation and give that committee the authority to

compel production of information. As the New Deal and World War II

reshaped the United States and, more pertinently, empowered the executive

branch, the dysfunction and relative weakness of Congress became

apparent.

152

The American Political Science Association established a

Committee on Congress to study the legislative branch and propose reforms.

The committee concluded that the decline of Congress was the result of “the

technical nature of modern public problems” and identified, among

Congress’s handicaps, the lack of ability to conduct oversight of executive

146. See 23 ANNALS OF CONG. 370 (1811) (proposing a resolution that requested the President “to

cause to be laid before this House, as far as practicable, a list of the whole number of persons impressed,

seized, and otherwise unlawfully taken from on board vessels sailing under the United States’ flag on the

high seas or rivers”).

147. 37 A

NNALS OF CONG. 607–08 (1820).

148. H

OUSE RESOLUTIONS OF INQUIRY, supra note 145, at 2.

149. 37 A

NNALS OF CONG. 607–08 (1820).

150. See, e.g., H.R. Res. 446, 115th Cong. (2017) (proposing a resolution of inquiry introduced by

members of the minority party “requesting the President and directing the Attorney General to transmit,

respectively, certain documents to the House of Representatives relating to the removal of former Federal

Bureau of Investigation Director James Comey”).

151. C

ONG. GLOBE, 36th Cong., 1st Sess. 141 (1859); A History of Notable Senate Investigations,

U.S. S

ENATE, https://www.senate.gov/artandhistory/history/common/briefing/Investigations.htm

[https://perma.cc/D9Z7-6WDC].

152. See 1 R

OBERT C. BYRD, THE SENATE 1789–1989: ADDRESSES ON THE HISTORY OF THE UNITED

STATES SENATE 537–40 (1988).

134 DUKE LAW JOURNAL [Vol. 70:nnn

administrative action.

153

In 1942, Representative Everett Dirksen asserted in

a speech entitled “What is Wrong with Congress?” that the legislative

branch’s problem was that it had “failed to” equip itself to cope with “the

growing power of the Executive and the growing power of the governmental

bureaus.”

154

Dirksen proposed that Congress “provide legislative tools to get

the facts, the data, the information, and then control, supervise, and survey

the operations of the Government.”

155

Numerous reform proposals emerged,

most of which, in some manner, proposed increased legislative oversight of

executive branch action.

156

The result of these reform efforts was the Legislative Reorganization

Act of 1946, which, among other things, reduced the number of

congressional committees—eliminating jurisdictional overlap and

confusion—and also gave each standing Senate committee the authority to

issue subpoenas.

157

At that time, only two House committees had such

authority—the Government Operations Committee and the Appropriations

Committee. Over time, that subpoena authority has been distributed even

further, not only to each individual congressional committee but ultimately

to the chairperson of the committee alone. The Rules of the House of

Representatives presently give committees and subcommittees the authority

to issue a subpoena for documents or testimony.

158

Although the rules, by

default, require the subpoena to be authorized by a majority of the committee

or subcommittee, they also allow the delegation of that authority to the

chairman.

159

Previously, such delegation to issue a subpoena unilaterally was

uncommon and, even where available, not used.

160

But over the past decade,

153. George B. Galloway, On Reforming Congress, in SPECIAL JOINT COMM. ON THE ORG. OF

CONG., 79TH CONG., THE ORGANIZATION OF CONGRESS: SYMPOSIUM BY MEMBERS OF CONGRESS AND

OTHERS 58–59 (Joint Comm. Print 1945).

154. 88 C

ONG. REC. 7696, 7697–7700 (1942) (statement of Rep. Everett Dirksen).

155. Id. at 7700.

156. B

YRD, supra note 152, at 541.

157. Legislative Reorganization Act of 1946, Pub. L. No. 79-601, §§ 102, 121,134(a), 60 Stat. 812,

814–20, 822–23, 831 (1946); see also The Legislative Reorganization Act of 1946, H

IST., ART &

ARCHIVES U.S. HOUSE OF REPRESENTATIVES, https://history.house.gov/Historical-Highlights/1901-

1950/The-Legislative-Reorganization-Act-of-1946 [https://perma.cc/F46X-USMT] (noting that when

the legislation went into effect, “the reforms reduced the number of House committees from 48 to 19 and

the number of Senate committees from 33 to 15”).

158. R

ULES OF THE HOUSE OF REPRESENTATIVES, 116th Cong., Rule XI, cl. 2 (m)(1)(B) (2019),

https://rules.house.gov/sites/democrats.rules.house.gov/files/documents/116-House-Rules-Clerk.pdf

[https://perma.cc/YQU2-PJAN].

159. Id. at XI, cl. 2 (m)(3)(A)(i).

160. See Henry A. Waxman, Opinion, Congressional Chairmen Shouldn’t Be Given Free Rein Over

Subpoenas, W

ASH. POST (Feb. 5, 2015), https://www.washingtonpost.com/opinions/a-congressional-

subpoena-is-too-powerful-to-be-issued-unilaterally/2015/02/05/a9d75160-aca8-11e4-9c91-

e9d2f9fde644_story.html [https://perma.cc/2F42-R9J2] (“In the past 60 years, only three chairmen have

2020] THE EXECUTIVE’S PRIVILEGE 135

nearly every committee amended its rules to allow a chairperson to issue a

subpoena unilaterally, some without requiring notice to the ranking member

or minority.

161

Those changes have allowed a chairperson’s staff, armed with

an autopen of the chairperson’s signature, to issue a subpoena for broad

swaths of information and documents to any executive branch official.

The authority to issue a subpoena for a staff deposition follows a similar

course. Historically, standing committees of the Senate and House have not

been thought to have authority to compel someone to sit for a staff

deposition,

162

distinguished from an interview most prominently by the fact

that it would be compelled, under oath, conducted by an attorney or staff

member, and recorded as an official transcript.

163

Instead, both houses of

Congress had authorized various committees to compel staff depositions

only in particular situations.

164

In 2007, however, after the Democrats

regained control of the House during the Bush administration, they amended

its rules to grant what is now the House Oversight and Government Reform

Committee standing authority to compel an individual to sit for a deposition

“by a member or counsel of the committee.”

165

In 2010, after Republicans

regained control of the House during the Obama administration, they

embraced issuing subpoenas without obtaining bipartisan or committee support: Sen. Joe McCarthy (R-

Wis.), Rep. Dan Burton (R-Ind.) and Rep. Darrell Issa (R-Calif.”).

161. See Andy Wright, New House Rules Promote Aggressive Congressional Oversight, J

UST SEC.

(Jan. 17, 2019), https://www.justsecurity.org/62269/house-rules-promote-aggressive-congressional-

oversight [https://perma.cc/HZ5H-GXD5] (noting that “successive new rules packages have continued to

expand the number of committee chairs” who can issue subpoenas unilaterally and that the “trend toward

unilateral, partisan subpoena power in the hands of committee chairs has continued its march, mirroring

the increasingly polarized political environment”).

162. See J

AY R. SHAMPANSKY, CONG. RSCH. SERV., 95-949 A, STAFF DEPOSITIONS IN

CONGRESSIONAL INVESTIGATIONS 4–9 (1999) [hereinafter STAFF DEPOSITIONS IN CONGRESSIONAL

INVESTIGATIONS] (noting that in 1999, “the Senate and the House . . . [were] of the view that standing

committees lack specific authority under the rules of each chamber to compel attendance at staff

depositions” (footnotes omitted)).

163. C

HRISTOPHER M. DAVIS, WALTER J. OLESZEK, BEN WILHELM, CLINTON T. BRASS, IDA A.

BRUDNICK, MAEVE P. CAREY, SARAH J. ECKMAN, WILLIAM T. EGAR, KATHRYN A. FRANCIS, MARK J.

OLESZEK, R. ERIC PETERSEN, JACOB R. STRAUS & MEGHAN M. STUESSY, CONG. RSCH. SERV., RL30240,

ONGRESSIONAL OVERSIGHT MANUAL 28 (2020); STAFF DEPOSITIONS IN CONGRESSIONAL

INVESTIGATIONS, supra note 162, at 4–6 & nn.16–17.

164. S

TAFF DEPOSITIONS IN CONGRESSIONAL INVESTIGATIONS, supra note 162, at 8–10; see, e.g.,

Inquiry into the Matter of Billy Carter and Libya: Hearings Before the Subcomm. To Investigate the

Activities of Individuals Representing the Ints. of Foreign Gov’ts of the S. Comm. on the Judiciary,

Volume III, 96th Cong. 1708–10, 1718–27, 1741–43 (1980) (discussing issues related to Senate resolution

authorizing depositions by staff members). After the 2008 election, the House authorized the House

Committee on the Judiciary to issue subpoenas for staff depositions to investigate the firing of the U.S.

Attorneys. See H.R. Res. 5, 111th Cong. § 4(f)(2)(A) (2009). Those subpoenas had been the subject of

President Bush’s claim of executive privilege and Harriet Miers’s claim of absolute immunity. Comm.

on the Judiciary v. Miers, 558 F. Supp. 2d 53, 56 (D.D.C. 2008).

165. H.R. Res. 6, 110th Cong. § 502 (2007).

136 DUKE LAW JOURNAL [Vol. 70:nnn

temporarily expanded the staff-deposition authority to four additional

committees, and then extended that authority to allow those committees to

continue their investigations of the Obama administration.

166

The House

rules, in 2017, authorized the chair of every standing committee, other than

the Administration and Rules committees, to order the taking of depositions

even with no member present, if it occurred during a recess and was

authorized by the committee.

167

And when Democrats took control of the

House in 2019, they continued to allow all committee chairs to issue

subpoenas for staff depositions and entirely dispensed with the need to have

a member present.

168

It is clear that there are relatively few limits—either external or

internal—on the authority of congressional committees to compel

individuals to provide information or testimony. So long as the committee’s

request relates to an area in which Congress could potentially legislate, is not

undertaken purely for harassment, and does not infringe on any

constitutional rights, almost all agree that the committee’s authority is, under

current doctrine, otherwise unrestricted.

169

But when the executive branch

166. H.R. Res. 5, 114th Cong. § 3(b) (2015) (granting staff deposition authority to the House

Committees on (1) Energy & Commerce, (2) Financial Services, (3) Science, Space, & Technology, and

(4) Ways & Means during the “first session” of the 114th Congress).

167. H.R. Res. 5, 115th Cong. § 3(b) (2017).

168. See H.R. Res. 6, 116th Cong. § 103(a)(1) (2019); see also J

ANE A. HUDIBURG, CONG. RSCH.

SERV., R45731, HOUSE RULES CHANGES AFFECTING COMMITTEE PROCEDURE IN THE 116TH CONGRESS

(2019–2020), at 5 (2019) (“These provisions are identical to those of a separate order adopted in the 115th

Congress, except the 116th Congress version does not include the requirement that ‘at least one member

of the committee shall be present at each deposition’ unless the witness or the committee waived the

requirement.” (quoting H.R. Res. 5, 115th Cong. § 3(b)(3) (2017))).

169. The scope of Congress’s oversight authority is also contested by the branches. The executive

branch has on a number of occasions refused to comply with congressional subpoenas for information on

the grounds that the information requests exceed Congress’s oversight authority because they are not in

furtherance of any potential legislative function and concern exclusive presidential authorities. See, e.g.,

Assertion of Exec. Privilege with Respect to Clemency Decision, 23 Op. O.L.C. 1, 2 (1999) [hereinafter

Clemency Assertion] (concluding that Congress lacked authority to conduct oversight of President’s

Clinton’s pardons because Congress “may only investigate into those areas in which it may potentially

legislate or appropriate [and] cannot inquire into matters which are within the exclusive province of one

of the other branches of the Government” (quoting Barenblatt v. United States, 360 U.S. 109, 111–12

(1959))); see also Assertion of Exec. Privilege Concerning the Dismissal & Replacement of U.S. Att’ys,

31 Op. O.L.C. 1, 3 (2007) (explaining that Congress had no legitimate oversight interest over the removal

of U.S. Attorneys because the president had the exclusive constitutional authority to remove officers).

The executive branch has also refused to comply with subpoenas on the grounds that the oversight was

not “legitimate” either because it believed the legislative justification was a pretext for a political

endeavor or because the request would infringe on the separation of powers. See Cong. Comm.’s Request

for the President’s Tax Returns Under 26 U.S.C. § 6103(f), 43 Op. O.L.C. 1, 1–3 (2019) [hereinafter

Request for Tax Returns] (concluding that the request for President Trump’s tax returns was pretextual

and not in furtherance of a valid legislative purpose); Fast & Furious Assertion, supra note 28, at 3–4

(concluding that the Department of Justice could withhold even documents not covered by the

deliberative process component of privilege because congressional oversight into the executive branch’s

2020] THE EXECUTIVE’S PRIVILEGE 137

believes a particular exercise of that authority interferes with its

constitutional authorities, oversight disputes arise. At that point, the branches

need some rule or procedure by which to resolve the dispute. Since there is

no “law” to which to turn—meaning no precedential judicial decisions to

which the branches must adhere—the “resolution” of the dispute turns on

which branch has authority to enforce its constitutional doctrine.

2. Congress’s Lack of Enforcement Authority. Congress’s ability to

enforce its recognized authority to issue compulsory process relies almost

wholly on the executive branch in modern practice. Where private

individuals are concerned, that typically presents little obstacle. But where

the executive branch is the noncompliant subject of Congress’s demands,

that reliance becomes paramount. And the limitations of Congress’s

enforcement powers become obvious.

a. Subpoena Return Dates. Initially, information disputes between

Congress and the executive branch followed a pattern in which the subpoena

was the final straw, and, if the executive branch determined it needed to

assert executive privilege, it did so before the return date of the subpoena.

President Reagan’s memorandum on executive privilege, for example,

instructed department heads to ask the congressional committee to hold a

subpoena in abeyance if it raised a substantial claim of executive privilege

so that the president would have time to consider it.

170

When Congress

demanded information through compulsory process with a fixed date for

compliance, the executive branch either complied, reached some agreement

with the committee or subcommittee, or asserted its constitutional privilege

by that date. In 1989, Assistant Attorney General William Barr stated that a

subpoena would issue only when the accommodation “process breaks

down,” and “it is necessary to consider asking the President to assert

executive privilege” if further negotiation is not productive.

171

As subpoenas have become commonplace, however, the executive

branch has given them less weight. The way the executive branch approaches

the process is laid out in declarations filed by career DOJ officials in the Fast

response to oversight itself was not legitimate); MAJORITY STAFF OF THE H. COMM. ON ENERGY &

COMMERCE & MAJORITY STAFF OF THE H. COMM. ON WAYS & MEANS, 114TH CONG., JOINT

CONGRESSIONAL INVESTIGATIVE REPORT INTO THE SOURCE OF FUNDING FOR THE ACA’S COST

SHARING REDUCTION PROGRAM 94 (Joint Comm. Print 2016) (noting that the executive branch had

objected to congressional oversight about the Affordable Care Act’s cost-sharing reduction payments

because the House of Representatives had filed suit contesting the legality of those payments and

“requesting interviews about agency action” then “raise[d] the appearance of utilizing oversight to

accomplish inappropriate litigation objectives”).

170. Reagan Memorandum, supra note 27, at 2.

171. Barr Memorandum, supra note 27, at 162.

138 DUKE LAW JOURNAL [Vol. 70:nnn

& Furious litigation,

172

in particular, the declaration of Paul Colborn, who

had served for twenty-seven years as the primary attorney at OLC in charge

of giving the president and executive branch agencies advice about executive

privilege and congressional oversight.

173

As Colborn explained, officials

who participate in the accommodation process negotiate with congressional

staff “in an attempt to accommodate the proffered legislative interest as fully

as possible, consistent with the institutional interests of the Executive,

despite the often adversarial nature of congressional demands for

information in the oversight context.”

174

Each branch “leverage[s] its

constitutional powers in negotiating with and working to accommodate the

other Branch,” and the issuance of the subpoena, in his description, does not

really alter that framework.

175

Because subpoenas “are often quite broad and

burdensome,” the executive branch is not able to reach a resolution of its

potential privilege claims before the return date, nor does it need to assert

privilege because the accommodation process continues beyond that date

.176

In other words, when an agency receives a subpoena with a return date,

it continues to engage in the accommodation process in the same way it does

when it receives a congressional oversight request. The agency provides

some information, but withholds information that is potentially protected by

executive privilege—for example, information that might fit within any of

the components of privilege. The agency can then wait until the committee

forces the issue and schedules a contempt vote. Only at this point does the

executive branch decide whether to assert executive privilege.

Subpoenas have thus become just another part of the political theater

that is the oversight process— performance rhetoric that does not have any

legal effect in practice. When the executive branch claims its confidentiality

172. See, e.g., Colborn Declaration, supra note 136, at 2–4.

173. Id. at 1–2.

174. Id. at 3.

175. Id. at 3–4.

176. Id. In full, Colborn’s statement illustrates the executive branch’s view that a congressional

subpoena and its return date is largely meaningless. The executive branch simply continues to withhold

the information it believes may be privileged and to negotiate with the committee:

Congressional subpoenas typically include a “return date” by which the recipient is instructed

to comply with the subpoena. When subpoenas are issued to the Executive Branch, however,

the resulting process of negotiation and accommodation described above often continues

beyond the subpoena’s return date. Indeed, the constitutionally mandated need to work

through the accommodation process with congressional committees, combined with the fact

that committee subpoenas . . . are often quite broad and burdensome, generally means that it

is not possible for the Branches to reach a resolution by the subpoena’s return date. Because

the Executive Branch treats assertions of Executive Privilege as a last resort, to be used only

when other options have been exhausted, it will generally not be asserted by the return date

but rather after a committee seeks to hold the subpoena recipient in contempt—an indication

that Congress believes that the accommodation process has reached an impasse.

Id.

2020] THE EXECUTIVE’S PRIVILEGE 139

interests and refuses to comply with an information request, the committee

issues a subpoena, accompanied by exhortations about its constitutional

authority and the legal requirement that it is imposing on the executive

branch. But the executive branch continues on as if nothing has changed. Its

“confidentiality interests” remain, undergirded by the possibility of an

assertion of privilege, even if remote, and it continues to rely on them to

refuse compliance with the subpoena.

b. Contempt. Congress attempts to enforce its subpoenas through

contempt. The Supreme Court has long held that Congress has implicit

constitutional authority to punish nonmembers by contempt.

177

Joseph Story

found it “obvious” that “unless such a power, to some extent, exists by

implication, it is utterly impossible for either house to perform its

constitutional functions.”

178

But the scope of Congress’s authority to act as

prosecutor and judge of contempt against it has never been definitively

resolved, particularly in the modern era when individual rights have become

more prominent.

179

The English precedents support an almost unchecked

legislative authority to try individuals for contempt.

180

But it is not clear how

much of that English practice is implicit in the Constitution and its specific

grants of legislative authority to Congress.

181

Moreover, the scope of Congress’s inherent contempt authority against

the executive branch is far from clear.

182

Professor Josh Chafetz highlights

three historical examples when the houses of Congress threatened or used

177. See McGrain v. Daugherty, 273 U.S. 135, 175 (1927) (“Experience has taught that mere requests

for such information often are unavailing, and also that information which is volunteered is not always

accurate or complete; so some means of compulsion are essential to obtain what is needed.”); In re

Chapman, 166 U.S. 661, 671–72 (1897) (“We grant that Congress could not divest itself, or either of its

Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either

House properly extended . . . .”); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 225–35 (1821). But see

Kilbourn v. Thompson, 103 U.S. 168, 196–98 (1881) (“But we do not concede that the Houses of

Congress possess this general power of punishing for contempt. The cases in which they can do this are

very limited.”).

178. 2 J

OSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 842, at 305

(Bos., Hillard, Gray, & Co., Cambridge, Brown, Shattuck, & Co. 1833).

179. See Wright, supra note 4, at 449–51, 466–67.

180. See J

OSH CHAFETZ, CONGRESS’S CONSTITUTION: LEGISLATIVE AUTHORITY AND THE

SEPARATION OF POWERS 153–69 (2017) [hereinafter CONGRESS’S CONSTITUTION] (cataloging the

English precedents, which included the authority to hold even the monarch in contempt, and the early

colonial legislatures’ continuation of that practice).

181. See id. at

171 (noting the lack of debate about the congressional house’s power to punish

nonmembers at the Constitutional Convention); id. at 172 (recognizing that Thomas Jefferson noted

constitutional arguments both for and against the power of contempt).

182. See id. at

181 (discussing Congress’s contempt authority over executive branch officials and

arguing that there is no reason to think that authority is different from Congress’s authority over private

nonmembers generally).

140 DUKE LAW JOURNAL [Vol. 70:nnn

their inherent contempt authority against executive branch officials.

183

the basis of English practice, those three examples, and the instances when a

house of Congress found the president in breach of privilege for commenting

negatively on congressional action, Chafetz concludes that there is no

“reason to think that the houses’ general contempt power over outsiders must

operate differently when the outsider in question happens to be a member of

the executive branch” or “when the defense to the contempt charge is

executive privilege, as opposed to something else.”

184

But none of the three

examples on which Chafetz relies involves a claim of privilege by the

president, a direction to a lower executive branch official not to comply with

a congressional information demand, or even acts taken by an executive

branch official in his official capacity.

185

Accordingly, the relevance and

applicability of these historical examples to claims of executive privilege are

far from clear.

186

Therefore, even though the historical English practice

allowed parliament to hold monarchs in contempt,

187

the authority of

Congress under the U.S. Constitution to punish executive branch officials

for withholding executive branch information—particularly officials acting

183. See id. at 176–79, 181–94.

184. Id. at

181.

185. Chafetz’s first example involves a letter written by an executive branch official alleging that a

member of Congress was corrupt, and, in response, the House passing a resolution finding the official

guilty of a gross violation of the privilege of the member. Id. at 175–76. Congress abolished the office

held by that official shortly thereafter. Id. at 176. The second example did involve an arrest of an executive

branch official, the Minister to China, for contempt. Id. at 176–77. However, the official was accused of

misappropriating large sums of money and refused to testify or provide documents based on his personal

privilege against self-incrimination under the Fifth Amendment. Id. The House refused to recognize that

privilege. Id. But the Supreme Court subsequently made clear that witnesses in congressional proceedings

are entitled to invoke their Fifth Amendment rights. See Quinn v. United States, 115 U.S. 155, 161 (1955).

The third example, which culminated in the Supreme Court’s decision in Marshall v. Gordon, 243 U.S.

521 (1917), again involved an executive branch official writing a defamatory letter about a member of

Congress. C

ONGRESS’S CONSTITUTION, supra note 180, at 177–78. The executive branch official, a U.S.

District Attorney, wrote and published a letter disparaging to members of House and the House as a

whole, and the House sent the sergeant-at-arms to take him into custody because the letter violated its

privileges, dignity, and honor of the House of Representatives. Id. at 178. The Supreme Court ultimately

concluded that the House lacked power to arrest individuals for contempt based on “irritating and ill-

tempered statements made in [a] letter.” Id. at 178–79 (quoting Gordon, 243 U.S. at 546). The Court did

not address the question of Congress’s authority to exercise inherent contempt against an executive

branch official acting pursuant to his official duties. Id. The executive branch officials in these examples

were not held in contempt for performing their official duties under the direction of the president or

superior executive branch officer but in their personal interests.

186. As Professor Todd David Peterson argues, Chafetz’s “contention that there are historical

precedents for the use of Congress’s inherent contempt power against officials who assert the President’s

claim of executive privilege is incorrect.” Peterson, supra note 7, at 80.

187. See C

ONGRESS’S CONSTITUTION, supra note 180, at 155, 168–69, 178–79.

2020] THE EXECUTIVE’S PRIVILEGE 141

pursuant to directives from the president—has not been addressed by the

courts or historical practice.

188

In practice, however, the question of Congress’s inherent contempt

authority has been moot. Congress has not used its inherent contempt

authority in almost a hundred years.

189

Instead, when faced with

recalcitrance, Congress has employed its authority under 2 U.S.C. §§ 192

and 194 to refer individuals for criminal contempt of Congress. Congress

enacted these criminal contempt provisions in 1857 to solve the problem of

an individual who refused to comply with a demand for information near the

end of a congressional session.

190

The prevailing view, largely based on

language from Anderson v. Dunn,

191

was that a recalcitrant witness could be

imprisoned by the House only until the end of the session.

192

Chafetz and others discuss inherent contempt and criminal contempt

under a single general heading of “contempt.”

193

Both the inherent authority

to hold an individual in contempt and the authority to pass a criminal law

punishing individuals for noncompliance arise out of the same legislative

authority—Congress’s power to require the production of information.

194

188. In U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) the Supreme Court held that a Department

of Justice official following an order from the attorney aeneral not to disclose information in response to

a judicial subpoena could not be found guilty of contempt because he was, as an inferior official, bound

by the attorney general’s order and a statute gave the attorney general authority to issue such an order. Id.

at 468–70. But the Touhy case expressly declined to decide whether the attorney general’s order itself

was valid and declined to address any constitutional issue. Id. at 467, 469. And Congress amended the

statute at issue in Touhy, the Housekeeping Act, as a result of the ruling in Touhy to provide that the

“section does not authorize withholding information from the public or limiting the availability of records

to the public.” See 5 U.S.C. § 301 (2018); Note, Discovery from the United States in Suits Between Private

Litigants—The 1958 Amendment of the Federal Housekeeping Statute, 69 Y

ALE L.J. 452, 454–56 (1960).

Accordingly, Touhy could provide a defense to any executive branch official charged with criminal

contempt if, in withholding information, the person was following a presidential order. But it does not

establish whether the president has authority to issue such an order or whether Congress may use inherent

contempt to force executive branch compliance. See id. at 454–55 & n.21.

189. See T

ODD GARVEY, CONG. RSCH. SERV., RL34097, CONGRESS’S CONTEMPT POWER AND THE

ENFORCEMENT OF CONGRESSIONAL SUBPOENAS: LAW, HISTORY, PRACTICE, AND PROCEDURE 12 (2017)

[hereinafter C

ONGRESS’S CONTEMPT POWER].

190. Id. at 19; see also C

ONG. GLOBE, 34th Cong., 3d Sess. 432 (1857) (statement of Rep. James

Lawrence Orr) (noting the limited time remaining in the session and that the proposed legislation would

force “recusant witnesses” to “suffer more than mere imprisonment from now to the end of the session”).

191. Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).

192. C

ONGRESS’S CONTEMPT POWER, supra note 189, at 8, 19.

193. See, e.g., C

ONGRESS’S CONSTITUTION, supra note 180, at 181–95 (discussing contempt of

Congress).

194. See, e.g., In re Chapman, 166 U.S. 661, 671 (1897) (“The refusal to answer pertinent questions

in a matter of inquiry within the jurisdiction of the Senate, of course, constitutes a contempt of that body,

and by the statute this is also made an offence against the United States.”); C

ONG. GLOBE, 34th Cong.,

3d Sess. 427 (1857) (statement of Rep. John Wesley Davis) (stating that the criminal contempt provision

“increases no power now existing in any committee, and confers no power to be exercised either by the

committee or the House” but instead “makes a mere substitution of a judicial proceeding . . . in lieu of

142 DUKE LAW JOURNAL [Vol. 70:nnn

The legislative history of the criminal contempt statute also demonstrates

Congress’s desire to give itself “additional authority, and to impose

additional penalties” on witnesses who refused to appear or answer

questions.

195

The two types of contempt are distinct, however.

196

Inherent

contempt is primarily coercive and can be remedied at any time by

compliance, while criminal contempt is punitive and cannot be remedied.

197

The most important distinction between the two, for purposes of

executive privilege, is their enforcement mechanisms. Because criminal

contempt requires prosecution, its enforcement requires the participation of

an executive branch official. And the executive branch has interpreted the

seemingly mandatory “shall” in the criminal contempt statute—as both a

matter of statutory construction and constitutional avoidance—to allow it to

decline to prosecute executive branch officials who withhold information or

refuse to appear under the direction of the president or other executive branch

officials.

198

As subpoenas have become more common, committee letters have

begun to cite and reference the contempt of Congress criminal statute as well

as the criminal obstruction of justice statute to emphasize the legal

the irregular” and “inefficient” remedy of inherent contempt, which “depend[s] entirely on the accidental

time of the duration of the Congress at which he may be called upon to testify”); id. at 429 (statement of

Rep. Alexander Keith Marshall) (“The [criminal contempt] bill proposes to call the judicial arm to the

aid of Congress in vindicating its integrity . . . .”); see also United States v. Rumely, 345 U.S. 41, 42–43

(1953) (overturning a conviction under § 192 because the committee to whom the defendant had refused

to disclose information lacked authorization from the House to demand such information); United States

v. Costello, 198 F.2d 200, 205 (2d Cir. 1952) (“A certification under [§ 194] means only that the Senate

has elected to have the contempt punished as a misdemeanor; this method is but an alternative one for

vindicating the authority of Congress.” (citing Jurney v. MacCracken, 294 U.S. 125, 151 (1935))).

195. C

ONG. GLOBE, 34th Cong., 3d Sess. 405 (1857) (statement of Rep. James Lawrence Orr).

196. See Marshall v. Gordon, 243 U.S. 521, 542 (1917).

197. See C

ONGRESS’S CONTEMPT POWER, supra note 189, at 4, 8 & n.65, 20 (explaining differences

between inherent and criminal contempt).

198. The Department of Justice’s longstanding position is that, once a referral for criminal contempt

has been made, the Department may exercise its prosecutorial discretion in determining whether to initiate

a prosecution and refer the matter to a grand jury. Prosecution for Contempt of Cong. of an Exec. Branch

Off. Who Has Asserted a Claim of Exec. Privilege, 8 Op. O.L.C. 101, 101–02 (1984) [hereinafter

Prosecution for Contempt of Cong.]. Despite the statement in § 194 that it “shall” be the duty of the U.S.

Attorney “to bring the matter before the grand jury,” 2 U.S.C. § 194 (2018), the 1984 opinion concluded

that “as a matter of statutory construction strongly reinforced by constitutional separation of powers

principles, we believe that the United States Attorney and the Attorney General, to whom the United

States Attorney is responsible, retain their discretion not to refer a contempt of Congress citation to a

grand jury.” Prosecution for Contempt of Cong., supra, at 128. That conclusion is consistent with the

textual analysis in the D.C. Circuit’s opinion in Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966),

which concluded that the Speaker of the House retained discretion not to refer a contempt report to the

U.S. Attorney despite the same “seemingly mandatory language of § 194.” Prosecution for Contempt of

Cong., supra, at 120–21; see also Wilson, 369 F.2d at 203–04.

2020] THE EXECUTIVE’S PRIVILEGE 143

compulsion on which the committee is relying.

199

Recognition that the

statute is useless against the executive branch has led some to call for

Congress to return to its inherent contempt authority as the next step in the

arms race.

200

Longtime congressional legal analyst Mort Rosenberg argues

that Congress, stymied by the executive branch’s refusal to enforce a

criminal contempt referral, may use its inherent contempt authority to

impose a fine on executive branch officials and automatically reduce their

pay.

201

In response, the executive branch has included a separate section in

recent opinions supporting its refusal to turn over information or provide

testimony, concluding that its officials cannot be constitutionally subjected

to any type of inherent contempt.

202

Congress, faced with a defiant executive branch, likely does not have

any mechanism by which to enforce inherent contempt—whether fine or

arrest—even if it had the desire to do so. Every option would appear to

require the participation of at least some executive branch officials. For

example, security personnel would have to allow an executive branch official

such as the attorney general or White House counsel to be taken into custody,

and treasury officials who would have to participate in the garnishment of

wages to pay a fine.

203

Any statutory authority on which the congressional

199. See Constitutional Conflict, supra note 7, at 888 n.26 (collecting examples); Letter from Sean

Duffy, Chairman, Subcomm. on Oversight & Investigations, House Comm. on Fin. Servs., to Jacob Lew,

Sec’y, U.S. Dep’t of Treasury 2 (Mar. 9, 2016), https://morningconsult.com/wp-

content/uploads/2016/03/2016-03-09-SPD-to-Lew-of-Treasury-re-Criminal-Obstruction-and-Contempt-

o....pdf [https://perma.cc/4HJR-WVYV] (“[T]he longstanding and persistent nature of Treasury’s refusal

to comply with this Committee’s constitutionally authorized oversight may constitute contempt of

Congress under 2 U.S.C. § 192 and obstruction of Congress under 18 U.S.C. § 1505.” (footnote omitted)).

200. See, e.g., John Bresnahan & Kyle Cheney, Nadler Squeezed with Calls for ‘Inherent Contempt,’

OLITICO (May 12, 2019, 6:52 AM), https://www.politico.com/story/2019/05/12/jerry-nadler-trump-

subpeona-1317458 [https://perma.cc/2F7B-9MA6] (noting that House Judiciary Committee Chairman

Jerry Nadler was facing pressure to use inherent contempt against recalcitrant administration officials);

Philip Bump, The House Could Take Subpoena Enforcement into Its Own Hands. Will It Work?, W

ASH.

POST (May 13, 2019, 4:46 PM), https://www.washingtonpost.com/politics/2019/05/13/house-could-take-

subpoena-enforcement-into-its-own-hands-will-it-work [https://perma.cc/UQ7W-YUP5] (reporting that

Representative Schiff stated the House Intelligence Committee was “looking through the history and

studying the law to make sure [it was] on solid ground” in considering imposing a daily $25,000 fine on

an executive branch official until he or she complied with the committee’s subpoena).

201. M

ORTON ROSENBERG, THE CONSTITUTION PROJECT, WHEN CONGRESS COMES CALLING: A

STUDY ON THE PRINCIPLES, PRACTICES, AND PRAGMATICS OF LEGISLATIVE INQUIRY 24–25 (2017).

202. See, e.g., McGahn Immunity Opinion, supra note 118, at 20 (“We . . . believe that Congress

could not lawfully exercise any inherent contempt authority against Mr. McGahn for asserting

immunity.”).

203. Kia Rahnama, for example, proposes in a recent article that Congress use monetary fines and

wage garnishments to enforce its subpoenas when faced with executive branch refusals to comply. Kia

Rahnama, Restoring Effective Congressional Oversight: Reform Proposals for the Enforcement of

Congressional Subpoenas, 45 J.

LEGIS. 235, 237 (2018). But Rahnama’s analysis is limited to the

authority Congress would have to impose the fines. It fails to recognize that the executive branch would

144 DUKE LAW JOURNAL [Vol. 70:nnn

committee or sergeant-at-arms could rely to seek cooperation of executive

branch officials would be, in the executive branch’s view, overridden by the

attorney general’s constitutional opinion. In other words, if the president and

attorney general declared that—as a constitutional matter—an executive

branch official defying a congressional subpoena could not legally be

arrested or fined, it is unclear whether Congress would have a realistic

mechanism for overcoming that declaration and imposing its punishment.

c. Judicial Resolution. Another recent development in the arms race

has been the House’s attempt to involve the judiciary. Recognizing that the

executive branch does not criminally prosecute an executive branch official

held in contempt if there has been an executive privilege claim, the House

has sought to compel compliance with subpoenas through civil contempt.

204

The first attempt by a single house of Congress to enforce subpoenas issued

to executive branch officials through the courts concerned President George

W. Bush’s assertion of privilege and immunity in the U.S. Attorneys

matter.

205

Now, seeking judicial resolution is the usual course. The House

authorized a civil suit at the same time it referred Attorney General Holder

for criminal contempt in the Fast & Furious matter, recognizing he would

not be prosecuted.

206

Recently, the House authorized a committee chairman

to proceed directly to the courts to enforce a subpoena without requiring the

full body’s authorization.

207

Relying on these authorities, congressional

committees have filed several suits against Trump administration officials

even without a full House finding contempt.

208

regard such attempts as unconstitutional, and the White House would instruct executive branch officials

to block any efforts to enforce or collect inherent contempt sanctions.

204. C

ONGRESS’S CONTEMPT POWER, supra note 189, at 26–30 (discussing civil enforcement actions

in the House).

205. Id.; see Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 56 (D.D.C. 2008) (“[T]he aspect

of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled

congressional process.”).

206. See H.R. Res. 711, 112th Cong. (2012) (referring Attorney General Holder for prosecution for

criminal contempt under 2 U.S.C. §§ 192 and 194); H.R. Res. 706, 112th Cong. (2012) (authorizing the

Chairman of the House Oversight and Government Reform Committee “to initiate or intervene in judicial

proceedings in any Federal court of competent jurisdiction, on behalf of the [c]ommittee . . . to seek

declaratory judgments affirming the duty of [Attorney General Holder] to comply with any subpoena” in

the Fast & Furious matter).

207. H.R. Res. 430, 116th Cong. (2019) (providing that the chair of the House Judiciary Committee

may initiate or intervene in any judicial proceeding to enforce subpoenas and that other committee chairs

may do so if authorized by the Bipartisan Legal Advisory Group, whose approval constitutes “the

equivalent of a vote of the full House of Representatives”).

208. See, e.g., In re Application of Comm. on the Judiciary, 414 F. Supp. 3d 129 (D.D.C. 2019);

Complaint for Declaratory and Injunctive Relief, Comm. on Ways & Means, v. U.S. Dep’t of Treasury,

No. 19-cv-1974 (D.D.C. July 2, 2019). These steps are significant because now, for the first time, a

congressional committee may, without any action by the full house, utilize delegated authority to (1) issue

2020] THE EXECUTIVE’S PRIVILEGE 145

The executive branch has contested the justiciability of these suits,

arguing that the House or a committee of the House lacks standing under the

Supreme Court’s reasoning in Raines v. Byrd.

209

The first three district court

judges to address the executive branch’s argument rejected it.

210

As a result,

those judges adjudicated the merits of the constitutional dispute between

Congress and the executive branch. In the first, Judge John Bates rejected

White House Counsel Harriet Miers’s claim of absolute immunity from

congressional testimony.

211

In the second, arising out of the Fast & Furious

a subpoena, (2) hold a noncompliant executive in contempt, and (3) seek judicial enforcement of the

subpoena. In enacting the criminal contempt provision, Congress expressly foreclosed such an option,

requiring in the procedures enacted in 2 U.S.C. § 194 that either the full house vote on contempt or, when

in recess, the Speaker to consider it. In Wilson v. United States, for example, the D.C. Circuit overturned

several convictions under § 192 because “the decision by the Committee to cite appellants for contempt

was not given the additional consideration within the legislative branch that is contemplated by the

governing statute, 2 U.S.C. § 194.” Wilson v. United States, 369 F.2d 198, 199 (D.C. Cir. 1966). The

individuals had refused to answer questions before the House Committee on Un-American Activities, and

the Committee had reported the facts of refusal to the Speaker of the House while Congress was not in

session. Id. at 199–200. The Speaker then certified the Committee’s report of contempt to the U.S.

Attorney after being advised that he had no discretion under § 194 to decide not to do so. Id. The court

rejected the contention that the Speaker had a mandatory duty to certify the committee’s contempt report

to the U.S. Attorney, noting that “[i]t has been the consistent legislative course . . . that the committee’s

report is subject to further consideration on the merits by the House involved.” Id. at 201. The Wilson

court collected the historical practice under §§ 192 and 194. It found that “the committee involved is

subject to an appropriate legislative surveillance on the merits of contempt citations.” and “where alleged

contempts are committed while Congress was in session, the Speaker may not certify to the United States

Attorney the statements of fact prepared by the Committee until the report of alleged contempt has been

acted upon by the House as a whole.” Id. at 201–02. When Congress is not in session, the Court concluded,

the Speaker retained discretion not to certify a committee report of contempt, citing the “time-honored

practice, since 1857, under which a ‘check’ on hasty action by a committee is provided through House or

Senate consideration of a resolution authorizing the presiding officer to make the certification set forth in

the statute.” Id. at 203. “The Congressional practice reflects a conclusion that it is inherently unfair to

permit the allegedly insulted committee to provide the sole legislative determination whether to initiate

proceedings to prosecute for contempt.” Id. Under the court’s construction of §§ 192 and 194,

prosecution would not be begun without the additional scrutiny within the legislative branch,

a scrutiny that would at least embrace examining the sufficiency of the statement of facts of

alleged contempts, and consideration whether the incident constitutes the kind of willful

contumacy contemplated by the statute, or perhaps whether the matter is sufficiently dubious

so that no contempt action should be begun in the absence of approval by the entire house.

Id. at 204. Because the defendants’ committee contempt reports had not been given the additional

legislative scrutiny contemplated by § 194, the court overturned their convictions under § 192. Id. at 205.

209. Raines v. Byrd, 521 U.S. 811 (1997); see Comm. on Oversight & Gov’t Reform v. Holder, No.

12-1332, 2013 WL 11241275, at *1–2 (D.C. Cir. Nov. 18, 2013) (refusing to certify an interlocutory

appeal despite DOJ’s reliance on Raines); Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp.

2d 1, 12–13 (D.D.C. 2013) (noting DOJ’s argument that the executive privilege claim was unreviewable,

which “rest[ed] almost entirely on one case: Raines v. Byrd”); Miers, 558 F. Supp. 2d at 66 (noting DOJ’s

reliance on Raines to argue that the Committee lacked standing).

210. See Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 197–98 (D.D.C. 2019), aff’d en

banc, No. 19-5331, 2020 WL 4556761 (D.C. Cir. Aug. 7, 2020); Holder, 979 F. Supp. 2d at 12–13; Miers,

558 F. Supp. 2d at 66.

211. See Miers, 558 F. Supp. 2d at 99–107 (discussing the absolute immunity claim).

146 DUKE LAW JOURNAL [Vol. 70:nnn

investigation, Judge Amy Berman Jackson refused to accept the executive

branch’s broad congressional work-product doctrine but agreed that

deliberative process was protected by executive privilege, rejecting the

House’s assertion that executive privilege was limited to presidential

communications.

212

She concluded, however, that the Department of Justice

had to comply with the subpoena because the deliberative process privilege

had been overcome.

213

And, most recently, Judge Kentanji Brown Jackson

held that former White House counsel Don McGahn was not absolutely

immune from compelled testimony, largely echoing Judge Bates’s previous

opinion.

214

All of these cases were appealed, but the first two ultimately settled

after an election that transferred the presidency from one party to the other.

215

In the third, the initial panel opinion agreed with the executive branch that

the court had no jurisdiction to entertain the interbranch dispute.

216

But that

decision was subsequently reversed by the D.C. Circuit en banc, which

agreed with the district court that congressional suits seeking compliance

with a subpoena were justiciable but declined to reach the merits of

McGahn’s immunity.

217

The McGahn litigation remains pending after

almost a year of litigation and may ultimately be rendered moot by the 2020

election.

218

The central problem with litigation as a mechanism for enforcement is

the time involved. The House authorized the Fast & Furious lawsuit on the

same day it held Attorney General Holder in contempt, June 28, 2012, and

filed a complaint less than two months later, on August 13, 2012.

219

But a

final, appealable district court decision was not issued until three and a half

212. Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 109, 119 (D.D.C. 2016).

213. Id. at 120–21.

214. McGahn, 415 F. Supp. 3d at 214–15.

215. See Comm. on Oversight & Gov’t Reform v. Barr, No. 16-5078, 2019 WL 2158212, at *1 (D.C.

Cir. May 14, 2019) (dismissing appeal after settlement); Comm. on the Judiciary v. Miers, No. 08-5357,

2009 WL 3568649, at *1 (D.C. Cir. Oct. 14, 2009) (same).

216. See Comm. on the Judiciary v. McGahn, 951 F.3d 510, 522 (D.C. Cir.), rev’d en banc, No. 19-

5331, 2020 WL 4556761 (D.C. Cir. Aug. 7, 2020).

217. See McGahn, 2020 WL 4556761, at *8.

218. See, e.g., Comm. on Judiciary v. McGahn, No. 19-5331, 2019 WL 6999926, at *1 (D.C. Cir.

Dec. 18, 2019) (per curiam) (ordering the parties to file supplemental briefs addressing “whether the

articles of impeachment render this case moot and whether expedited consideration remains necessary”

and ordering the House committee to address “whether it still seeks to compel [McGahn]’s testimony

and, if so, whether it seeks to compel such testimony in furtherance of its impeachment inquiry or as a

matter of legislative oversight”).

219. Complaint at 11, 41, Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C.

2013) (No. 1:12-cv-1332), 2012 WL 3264300.

2020] THE EXECUTIVE’S PRIVILEGE 147

years later.

220

The House had to pass a resolution after subsequent elections

reauthorizing the subpoena and lawsuit.

221

If it had not, the subpoena would

have expired, mooting the suit.

222

In the dispute over information related to

the firing of the U.S. Attorneys, the House held Miers and White House

Chief of Staff Josh Bolten in contempt on February 14, 2008

223

and filed suit

on March 10, 2008.

224

The district court decided the question of absolute

immunity relatively quickly, issuing an opinion on July 31, 2008, but did not

resolve the underlying claim of privilege.

225

And, after a September

argument, the D.C. Circuit stayed the district court’s decision on immunity

on October 6, 2008, and refused to expedite the case or give any opinion on

the merits given the pending election and weighty issues involved.

226

Thus,

even the threshold question of absolute immunity in Committee on the

Judiciary v. Miers

227

took a number of months to make it to the appellate

court, and the courts never really had time to address the merits of the

privilege claim or balance the interests of the two branches.

228

Although the

McGahn litigation was expedited, it remains pending over a year after it was

initiated and took long enough that the House cited the delay as reason for

not going to court to force the testimony of a witness who refused to comply

with subpoenas during the impeachment inquiry.

229

The House instead

220. Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101 (D.D.C. 2016). In the Fast

& Furious matter, the parties agreed to some delays, and a congressional committee could certainly move

with more haste. But a district court would still likely have to resolve threshold issues, such as standing,

from which an interlocutory appeal could be certified, as the Justice Department requested in the Fast &

Furious matter. See Holder, 979 F. Supp. 2d at 12–13 (noting DOJ’s argument that the executive privilege

claim was unreviewable); Comm. on Oversight & Gov’t Reform v. Holder, No. 12-1332, 2013 WL

11241275, at *1–2 (D.D.C. Nov. 18, 2013) (refusing to certify an interlocutory appeal).

221. See H.R. Res. 5, 114th Cong. § 3(f)(1) (2015); H.R. Res. 5, 113th Cong. § 4(a)(2) (2013).

222. See Comm. on the Judiciary v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008) (per curiam) (granting

a stay pending appeal and noting that “this controversy will not be fully and finally resolved by the

Judicial Branch—including resolution by a panel and possible rehearing by this court en banc and by the

Supreme Court—before the 110th Congress ends on January 3, 2009” at which time “the 110th House of

Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire”).

223. Complaint for Declaratory and Injunctive Relief at 22–23, Comm. on the Judiciary v. Miers,

558 F. Supp. 2d 53 (D.D.C. 2008) (No. 1:08-cv-409), 2008 WL 2150290.

224. Id. at 1, 36.

225. Miers, 558 F. Supp. 2d at 53, 107.

226. Miers, 542 F.3d at 909; Docket Sheet, Miers, 542 F.3d 909 (No. 08-5357).

227. Comm. on the Judiciary v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008) (per curiam).

228. Courts may also be hesitant to wade into the controversy. The D.C. Circuit twice abstained in

AT&T litigation, urging the parties to reach a settlement, see United States v. AT&T, 567 F.2d 121, 130–

33 (1977); United States v. AT&T, 551 F.2d 384, 394–95 (1976), and denied a motion to expedite the

appeal in the Miers litigation, see Miers, 542 F.3d at 911. In the Miers case, the D.C. Circuit reasoned

that “even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch—

including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court—

before the 110th Congress ends.” Miers, 542 F.3d at 911.

229. H.R.

REP. NO. 116-346, at 156 (2019).

148 DUKE LAW JOURNAL [Vol. 70:nnn

passed an additional article of impeachment against Trump for obstruction

of its impeachment inquiry.

230

Each house of Congress has, of course, always wielded other

mechanisms of coercing the executive branch to comply with its demands.

Most prominently, the Senate can refuse to act on a confirmation until a

particular document or set of documents have been disclosed.

231

Or the

House can attempt to use its appropriation power to force disclosure.

232

Chafetz, for one, urges Congress to reinvigorate such tools along with its

inherent power to arrest individuals and hold them until they comply with

the subpoena.

233

In his view, “judicial resolution of these questions is simply

not suited to political time frames,” so Congress should stop attempting to

use the courts to enforce subpoenas.

234

Chafetz is correct that judicial resolution takes too long to be an

effective means of enforcement. But his optimistic view of Congress’s other

authorities to enforce its subpoenas fails to account for the limits on those

authorities and the means by which the executive branch can combat them.

Only the Senate has a role in confirmations, and, in recent decades, the most

aggressive oversight has been conducted by the House. Further, the use of

the appropriations authority requires the buy-in of the entire Congress, not

just a single committee, subcommittee, or motivated chairperson pursuing a

particular investigation. Moreover, the president retains veto power over any

230. Id. at 132–56.

231. For example, a group of Senators put President Obama’s nomination of David Barron to the

First Circuit on hold until the administration agreed to release a 2010 OLC memo authorizing a drone

strike of a U.S. citizen. See Zeke J. Miller & Massimo Calabresi, Inside the Obama Administration Fight

Over the Drone Memo, T

IME (May 13, 2014, 4:42 PM), https://time.com/97613/obama-drone-memo-

david-barron [https://perma.cc/4U9H-JC7E];

Benjamin Wittes, David Barron, Targeted Killing, and

Rand Paul’s Wrongheaded Oped, L

AWFARE (May 12, 2014, 8:10 AM),

https://www.lawfareblog.com/david-barron-targeted-killing-and-rand-pauls-wrongheaded-oped

[https://perma.cc/5R4A-LR8G].

232. For example, § 714 of the Consolidated Appropriations Act, 2010 prohibits “the payment of the

salary of any officer or employee of the Federal Government who . . . prohibits or prevents, or attempts

or threatens to prohibit or prevent, any other [Federal] officer or employee . . . from having direct oral or

written communication or contact with any Member, committee or subcommittee of the Congress.”

Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, § 714, 123 Stat. 3034, 3208 (2010); see

also Constitutional Conflict, supra note 7, at 931 (“Congress may use legislative authorizations and

appropriations as leverage against the Executive Branch to obtain requested information.”). Some have

proposed that Congress enact a rider similar to § 714 “disallowing the use of any appropriation to pay the

salary of a federal official held in contempt of Congress.” H.R. R

EP. NO. 114-848, at 402 (2016); see also

Contempt Act, H.R. 4447, 113th Cong. § 2 (2014) (a bill that would prohibit payment of compensation

to an officer or employee of the Federal government who has been held in contempt of Congress by the

House or Senate).

233. Josh Chafetz, Congress Can’t Rely on the Courts To Enforce Its Subpoenas. Don’t Panic.,

ASH. POST (Mar. 2, 2020, 12:08 PM), https://www.washingtonpost.com/outlook/2020/03/02/congress-

cant-rely-courts-enforce-its-subpoenas-dont-panic [https://perma.cc/8BW5-ASSF].

234. Id.

2020] THE EXECUTIVE’S PRIVILEGE 149

legislative enforcement. Even when Congress succeeds in passing

appropriations laws that are contingent on the sharing of information, the

executive branch has raised constitutional objections to those laws and

indicated it would not comply.

235

Shutting down the government over what the executive branch would

characterize as an assertion of a well-recognized, historically grounded

constitutional authority may not, in reality, be a viable option. As Chafetz

notes, Congress often suffers the political fallout from a shutdown, and few

oversight disputes rise to a level that the House would be willing to risk that

political blowback.

236

Similarly, impeachment solely for noncompliance

with subpoenas would not only be potentially politically costly, it would be

unprecedented. Although an obstruction of a congressional inquiry formed

part of the articles of impeachment against Nixon, Clinton, and Trump, that

charge was a secondary one, complementing a primary act alleged to be a

high crime or misdemeanor.

237

An assertion of executive privilege, standing

alone, is highly unlikely to be the principal grounds for impeachment. And,

as noted, inherent contempt raises all kinds of practical problems that make

it an unrealistic option, as the House acknowledged in the litigation involving

McGahn.

238

In short, the few mechanisms that Congress can use on its own to

enforce compliance with a subpoena—principally, refusing to appropriate

money without compliance, inherent contempt, or impeachment—are

extreme measures that would likely incur substantial political costs and, even

then, may not work. Accordingly, though Congress does theoretically have

stand-alone powers to fight the executive branch’s sweeping doctrine of

executive privilege, those powers are, in practice, rarely viable options. They

235. See generally Auth. of Agency Offs., supra note 3 (advising the Department of Health and

Human Services that its officials have authority to prohibit employees from complying with

Congressional requests for information).

236. See C

ONGRESS’S CONSTITUTION, supra note 180, at 68–70.

237. See H.R. Res. 755, 116th Cong. (2019) (impeaching President Trump for Abuse of Power and

Obstruction of Congress); H.R.

REP. NO. 105-830, pt. 1, at 2–5 (1998) (announcing articles of

impeachment against President Clinton for perjury, obstruction of justice, and abuse of power); H.R.

REP.

NO. 93-1305, at 1–4 (1974) (announcing articles of impeachment against President Nixon for obstruction

of justice, abuse of power, and contempt of Congress).

238. During oral arguments in the litigation over the subpoena to former White House Counsel Don

McGahn, counsel for the House of Representatives rejected the contention that inherent contempt is a

practical option, noting that the House “do[es]n’t have the sergeant at arms go out and arrest people, and

maybe have a gun battle with [the Attorney General’s] security detail.” Oral Argument at 52:44, In re

Comm. on the Judiciary, 951 F.3d 589 (D.C. Cir. 2020) (No. 19-5288),

https://www.cadc.uscourts.gov/recordings/recordings2019.nsf/F443323EF0BE1B5685258

4E40066ECE0/$file/19-5288.mp3 [https://perma.cc/KU55-KT6G].

150 DUKE LAW JOURNAL [Vol. 70:nnn

run aground on the reality recognized by Rehnquist: the executive branch

has the information and, thus, a “headstart.”

239

C. Prophylactic Executive Privilege

The executive branch now uses a variety of procedures and

constitutional doctrines to negate congressional demands for information

without ever asserting executive privilege or considering any specific,

identifiable harm. These procedures and doctrines are justified not by

concrete harm from disclosure but by the need to protect executive privilege,

the president’s prerogative to control all information that fits within the

components of executive privilege. This Article refers to the use of these

procedures and doctrines as the prophylactic executive privilege.

240

And, to

the extent one considers executive privilege to mean the president’s

constitutional authority to withhold information from Congress, the

prophylactic executive privilege is executive privilege in current practice.

The Reagan memorandum initially advised department heads to request

that a congressional committee “hold its request for the information in

abeyance” while the president is considering a claim of privilege.

241

But it

also clarified that such a request “itself does not constitute a claim of

privilege.”

242

Instead, that request should have been made only when

information raised a “substantial question of executive privilege,” a term it

defined quite narrowly. The memorandum delegated to agency officials the

task of determining whether the release of specific information requested

might be harmful to national interests, warranting presidential

consideration.

243

Today, this is no longer true. Lower executive branch officials do not

consider identifiable harm that may result from the disclosure of specific

information. Rather, they assess only whether the requested information falls

within one of the components of executive privilege, relying on the need to

protect the president’s prerogative to assert privilege to refuse to provide

information. Subtly, the need to protect the president’s prerogative has

239. Rehnquist Memorandum, supra note 21, at 6.

240. See generally Jonathan Shaub, The Prophylactic Executive Privilege, L

AWFARE (June 14, 2019,

5:18 PM) [hereinafter Prophylactic Executive Privilege], https://www.lawfareblog.com/prophylactic-

executive-privilege [https://perma.cc/PZ9N-ZT6X] (increasing reliance on protective assertions “either

in combination with or instead of formal assertions of executive privilege . . . will establish a prophylactic

layer of constitutional protection that extends well beyond the boundaries of executive privilege and

dispenses with a core part of the executive privilege analysis—balancing congressional interests”).

241. Reagan Memorandum, supra note 27, at 2.

242. Id.

243. Id. at 1–2.

2020] THE EXECUTIVE’S PRIVILEGE 151

become privilege itself, the only rationale necessary to refuse to comply with

a congressional demand for information.

Lower executive branch officials refuse to disclose information by

shielding themselves in the president’s prerogative to make the final

privilege decision and the broad scope of the components of privilege.

244

The

“scope” of executive privilege is no longer determined by the public interest

with respect to a specific piece of information. It is determined by the initial

scope, before any balancing occurs, of “components” that protect certain

generalized confidentiality interests against undifferentiated institutional

harms. But despite the qualified nature of both executive privilege and the

common law privileges on which the components are based, the executive

branch’s “privilege” of allowing the president to control the dissemination

of such information is absolute.

In short, the executive branch’s current use of executive privilege to

block congressional inquiry bears little relation to a situational balancing of

specific harm from disclosure against Congress’s need for the information.

What was formerly a doctrine about the president’s authority to prevent the

disclosure of specific pieces of information, has become a doctrine almost

entirely about prophylaxis. The new prophylactic executive privilege

prohibits, as a constitutional matter, the release of any information

potentially covered by the executive branch’s view of executive privilege.

And the executive branch has added an additional layer of protection for the

prophylaxis itself, concluding that the privilege prohibits not just disclosure

itself but also any burden on the executive branch’s authority to monitor the

release of such information. Accordingly, executive branch officials claim

the authority to direct all current and former employees and officials not to

disclose any information in response to a congressional subpoena and, in

some circumstances, to refuse to appear altogether in response to a

congressional subpoena.

This new concept of executive privilege has three central pillars that the

executive branch has used, in combination, to vastly expand its authority vis-

à-vis Congress. First, the president has the sole right to assert privilege and

244. Examining unforthcoming congressional testimony by Attorney General Jeff Sessions, Heidi

Kitrosser has called this phenomenon the “shadow effect” of executive privilege, defining it as the

“impact on oversight of the implicit or explicit threat that [executive privilege] might be invoked at some

point.” Heidi Kitrosser, The Shadow of Executive Privilege, 15 F

ORUM 547, 548 (2017). As she notes,

declining to provide information to Congress because executive privilege could be used to withhold the

information “can help to shield the executive from political and legal accountability” and allows the

executive branch to “bypass[] both the substantive questions asked [by Congress] as well as any serious

engagement with the merits of the executive privilege claim.” Id. Kitrosser’s insightful observations

recognize that executive privilege can “cast strong shadows” even when there is no formal assertion of

privilege or even no mention of the term. Id. at 547–48, 551.

152 DUKE LAW JOURNAL [Vol. 70:nnn

will not consider such an assertion until Congress decides to hold an official

in contempt. Second, the Constitution gives the president the affirmative

power to control the dissemination of all information that fits within any of

the components of executive privilege and, accordingly, the authority to

issue directives to any current or former member of the executive branch

about the disclosure or dissemination of that information. Third, if there is

even a chance that information may be disclosed without the president’s

authorization, the executive branch can utilize a series of prophylactic

doctrines to ignore or countermand a congressional subpoena without any

need to consider Congress’s need for or interest in the information. Each of

these pillars, and the doctrines that have arisen from them, are justified—in

the executive branch’s view—by the same premise: the need to “protect” the

president’s authority to assert executive privilege. That “protection” has

largely become the primary justification for refusing to comply with

congressional oversight demands. In other words, the prophylactic executive

privilege has, in today’s practice, become executive privilege itself.

1. Protecting the President’s Prerogative: Executive Privilege as a

“Last Resort.” The seeds of the prophylactic executive privilege can be

found in the Supreme Court’s decision in Cheney v. United States District

Court.

245

In that case, two organizations sued the National Energy Policy

Development Group, a group established by President George W. Bush to

develop energy policy, and its members, including Vice President Dick

Cheney, alleging that the group had failed to comply with the requirements

of the Federal Advisory Committee Act.

246

The district court permitted the

suit to move forward against Cheney and the other defendants and allowed

for limited discovery about the nature of the committee.

247

The executive

branch sought mandamus from the court of appeals, asking it to vacate the

discovery orders because they implicated material potentially covered by

executive privilege, but the court of appeals declined to issue the writ of

mandamus.

248

Even though it recognized the discovery requests were overly

broad, the court of appeals reasoned that, under Nixon, the executive branch

had to first assert privilege and do so “with particularity” in response to the

discovery requests.

249

The Supreme Court vacated the court of appeals’ decision, however,

and held that it had “labored under the mistaken assumption that the assertion

245. Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004).

246. Id. at 373.

247. Id. at 376–77.

248. Id.

249. In re Cheney, 334 F.3d 1096, 1104 (D.C. Cir. 2003), vacated, 542 U.S. 367 (2004).

2020] THE EXECUTIVE’S PRIVILEGE 153

of executive privilege is a necessary precondition to the Government’s

separation-of-powers objections.”

250

It recognized that Nixon had held that

the president could not “through the assertion of a ‘broad [and]

undifferentiated’ need for confidentiality” withhold information but had to

invoke privilege with specificity and particularized objections.

251

But

Cheney held that principle applied only after the party seeking the

information had “satisfied his burden of showing the propriety of the

requests.”

252

And, in language that would be quoted innumerable times by

the executive branch in oversight disputes,

253

the Court characterized

executive privilege as “an extraordinary assertion of power ‘not to be lightly

invoked,’” and one that sets “coequal branches of the Government . . . on a

collision course” and “should be avoided whenever possible.”

254

Instead of

requiring the executive branch to assert executive privilege with

particularity, the district court should have shaped its discovery orders to

accommodate the executive branch’s interests that are protected by privilege

without requiring the executive branch to assert privilege over any specific

piece of information.

255

In some ways, Cheney echoes the longstanding executive branch

position that executive privilege “will be asserted only in the most

compelling circumstances” and only as a last resort when disclosure disputes

cannot be resolved through “good faith negotiations” between the

branches.

256

But the premise of that position in Cheney is that the party

requesting discovery must initially show “the propriety of [its] requests” for

the information before the privilege becomes relevant, a step the district

court had skipped even though it acknowledged that the requests were

“overly broad.”

257

Congress would undoubtedly contend—and there would

likely be little disagreement in most circumstances—that its act of issuing a

subpoena for information related to a subject on which it could legislate is

sufficient to demonstrate the “propriety” of the requests.

The executive branch, however, views a congressional oversight

request or subpoena in the same way it—and ultimately the Court—viewed

250. Cheney, 542 U.S. at 391–92.

251. Id. at 388 (quoting United States v. Nixon, 418 U.S. 683, 706–07 (1974)).

252. Id.

253. See, e.g., Letter from Stephen E. Boyd, Assistant Att’y Gen., Off. of Legis. Affs., U.S. Dep’t of

Just., to Jerrold Nadler, Chairman, House Comm. on the Judiciary 3 (Feb. 7, 2019),

https://www.politico.com/f/?id=00000168-c91f-d364-a97d-ef9f540d0001 [https://perma.cc/U75T-

4K8S].

254. Cheney, 542 U.S. at 389–90 (quoting United States v. Reynolds, 345 U.S. 1, 7 (1953)).

255. Id.

256. Reagan Memorandum, supra note 27, at 1.

257. Cheney, 542 U.S. at 376–77, 388.

154 DUKE LAW JOURNAL [Vol. 70:nnn

the discovery demands in Cheney: as overly broad and potentially, with

respect to some information at least, not within Congress’s authority. If a

committee requests a large swath of nonpublic documents, including emails,

then some of those documents will undoubtedly implicate one of the

components of executive privilege. As a result, the executive branch

responds by citing its “confidentiality interests” and initiating the

constitutionally “mandated” accommodation process. If information is not

classified, then the executive branch has no way to prevent Congress from

releasing it or even posting it on the internet. As a result, if the information

is politically damaging, even if mostly benign, the executive branch will not

hand it over initially, whether it falls within one of the components of

privilege or not.

The fact that some of the information covered by the subpoena would

fall within the executive branch’s broad scope of privilege is sufficient to

initiate the accommodation process. Consider, for example, the subpoenas

issued for information related to the Obama administration’s decision to fund

the cost-sharing reduction payments from a permanent appropriation after

Congress did not specifically appropriate money for the payments.

258

Some

of the information requested was factual, such as the names of individuals

who attended certain meetings or the dates and times of those meetings, and

was the type of information that would be disclosed on a privilege log. It is

almost certainly not covered by the deliberative process privilege or the

presidential communications privilege.

259

But, because some of the

information requested did fall within the scope of the deliberative process

component, the executive branch engaged in the accommodation process and

refused to disclose the names as well as a substantial amount of other

information.

260

And the dispute ultimately petered out after the next election

when the inquiry was no longer politically salient.

The executive branch uses its doctrine of executive privilege and, in

particular, its stringent balancing test, to place Congress in a catch-22. As an

oversight dispute develops, the congressional committee uses its tools to

attempt to force compliance—subpoenas, depositions, political statements or

hearings, contempt threats, contempt votes, impeachment threats, etc. If the

committee moves too quickly with respect to a large swath of documents,

the executive branch may claim that the committee is not following the

258. See H.R. REP. NO. 114-887, at 79 (2016) (describing the oversight dispute).

259. See M

AJORITY STAFF OF THE H. COMM. ON ENERGY & COMMERCE & MAJORITY STAFF OF THE

H. COMM. ON WAYS & MEANS, 114TH CONG., JOINT CONGRESSIONAL INVESTIGATIVE REPORT INTO THE

OURCE OF FUNDING FOR THE ACA’S COST SHARING REDUCTION PROGRAM 8–9, 12 (Joint Comm. Print

2016).

260. Id. at 131–45.

2020] THE EXECUTIVE’S PRIVILEGE 155

“constitutional mandate” of AT&T. When there are relatively few specific

documents at issue, the executive branch can offer accommodations, such as

an oral briefing or an opportunity to review the documents in camera but not

take possession of them. In this way, the “balancing” always favors the

executive branch. If the committee continues to push and the president

ultimately makes a formal assertion of privilege, the opinion supporting

privilege asserts that that those specific documents are not necessary to the

committee’s legislative function because other information is available and

because the relevant executive branch entity has provided—or is willing to

provide—information orally or through in camera review.

Under the executive branch’s doctrine, the only situation where the

executive branch could be forced to comply with a congressional oversight

subpoena would be if a congressional committee had a legitimate oversight

interest, in the executive branch’s view, for a specific document or set of

documents that do not arguably fall within any of the components of

executive privilege. And that circumstance is extremely rare. Usually, the

executive branch can either claim that it needs time to review a broad request

to consider executive privilege—and chastise the committee for not

engaging in a good-faith accommodation process if it attempts to move more

quickly—or it can assert that the committee has no need for specific

documents that are the subject of a narrow request because other documents

exist. The fact that the executive branch can play hardball does not mean that

it will, particularly if the politics are not favorable. But, under current

executive branch doctrine, it believes it has the authority to do so.

2. Protecting the President’s Prerogative: Absolute Authority To

Control the Dissemination of Information. The prophylactic executive

privilege results from an amalgamation of various broad evidentiary

privileges as components of a singular executive privilege and the

centralization in the president of control over information. To be sure, each

component protects interests in confidentiality that courts and the

government have long recognized. They represent longstanding, venerated

areas in which presidents have consistently, since the country’s founding in

some cases, determined that withholding certain information from Congress

was necessary to the public interest. But executive privilege historically

protected only the precise information selected by the president that would

cause identifiable damage to the public interest. And restricting formal

assertions of “executive privilege” to the president is largely uncontroversial.

But when the doctrine of executive privilege is conflated with the broad

scope of its various evidentiary components—not with specific information

within those areas that may cause identifiable harm—the resulting doctrine

156 DUKE LAW JOURNAL [Vol. 70:nnn

is that only the president may authorize the release of any information falling

within those broad categories.

The prophylactic executive privilege is thus grounded not in concrete

damage that would result from the disclosure of subpoenaed information but

in harm to the president’s absolute authority to control the dissemination of

information. The institutional interests that evidentiary privileges, such as

the attorney-client and the deliberative process privilege, are designed to

safeguard could—and should—be protected by those privileges in the

oversight process. That is particularly true in an environment in which

politics drive most oversight inquiries. Under the executive branch’s current

doctrine, however, any information that falls within the scope of a

component of executive privilege threatens constitutional harm so grave it

can be withheld unless it is critically necessary for Congress to legislate. It

is hard to conceive of information that could satisfy that exacting standard.

Unlike any other privilege, the doctrine pairs a vast scope with an

almost insurmountable balancing test. The combination of the president’s

unilateral authority to control information, the expansion of the types of

protected information and the undifferentiated confidentiality interests often

eliminate the need to assert privilege. Accordingly, the current doctrine often

obviates any need to consider Congress’s interests at all, let alone balance

them against the executive branch’s confidentiality interests.

3. Protecting the President’s Prerogative: Prophylactic Doctrines.

Congress has attempted to counteract these protective measures in a number

of ways, typically by threatening contempt and attempting to force an actual

assertion of privilege or by forcing a lower executive branch official to

answer questions on the spot as part of testimony or a deposition. In

response, the executive branch has developed additional constitutional

doctrines that give the president more authority to countermand or negate

congressional subpoenas. These doctrines include (1) the testimonial

immunity of senior presidential advisers, (2) the potential for a “protective”

assertion of executive privilege, and, most recently, (3) the deposition-

counsel requirement. These doctrines are a unique form of prophylactic

executive privilege because they assert additional authority to protect against

any congressional practice that threatens to prevent the executive branch

from protecting the president’s prerogative.

a. Testimonial Immunity. The first—and original—prophylactic

doctrine is the executive branch’s constitutional doctrine of testimonial

immunity. Developed over the past fifty years, the doctrine holds that the

president’s senior advisers are absolutely immune from compelled

congressional testimony, even absent an assertion of executive privilege by

2020] THE EXECUTIVE’S PRIVILEGE 157

the president.

261

This privilege is absolute, not subject to balancing of any

kind.

262

And it applies to both current and former advisers to the current

president.

263

In the past, the Department of Justice has described this

immunity as an exercise or a facet of executive privilege. Attorney General

Janet Reno advised President Bill Clinton, for example, that he could assert

“[e]xecutive privilege . . . in response to a congressional subpoena seeking

testimony by the Counsel to the President concerning the performance of

official duties on the basis that the Counsel serves as an immediate adviser

to the President and is therefore immune from compelled congressional

testimony.”

264

An internal 1982 memorandum from the head of OLC to the

Associate Attorney General notes that a “congressional demand for

testimony from a close adviser to the President directly implicates a basic

concern underlying the Executive privilege.”

265

But, in the recent disputes

over the testimony of senior advisers that resulted in official claims of

immunity and the legal opinions justifying those assertions, the doctrine has

been described as “distinct from, and broader than, executive privilege.”

266

The basic rationale for the doctrine is that the president is absolutely

immune from a congressional subpoena to testify, and, because compelled

testimony of a senior adviser would implicate the same separation of powers

concerns as compelled testimony of the president, those advisers share the

president’s immunity.

267

Additionally, the compelled testimony of close

presidential advisers would involve the core of the presidential

communications component of executive privilege and could also force a

close presidential aide to spend time preparing for testimony and testifying,

thereby interfering with her ability to carry out her duties assisting the

president.

268

The doctrine of absolute immunity for senior presidential advisers is the

earliest form of prophylaxis, and its development demonstrates the way a

policy designed to protect the underlying privilege becomes a stand-alone

constitutional doctrine itself. Originally articulated as a “tentative” and

“sketchy” doctrine by then-Assistant Attorney General Rehnquist,

261. See McGahn Immunity Opinion, supra note 118, at 7–12 (collecting historical examples).

262. Id. at 4–5.

263. Id. at 15.

264. Clemency Assertion, supra note 169, at 4.

265. Memorandum from Theodore B. Olson, Assistant Att’y Gen., Off. of Legal Couns., U.S. Dep’t

of Just., to Rudolph W. Giuliani, Assoc. Att’y Gen., U.S. Dep’t of Just., Congressional Demand for

Deposition of Counsel to the President Fred F. Fielding 1 (July 23, 1982),

https://www.justice.gov/olc/page/file/1225996/download [https://perma.cc/2Q6N-4FRF].

266. McGahn Immunity Opinion, supra note 118, at 4.

267. Id. at 4–7.

268. Id.

158 DUKE LAW JOURNAL [Vol. 70:nnn

testimonial immunity adhered closely to the need to protect the

confidentiality of presidential communications.

269

In testimony given the

same year he wrote his foundational memorandum on immunity, Rehnquist

described the same historical examples addressed in the memorandum as

“instances in which Presidential advisers have failed to appear before

Congressional committees on the ground that the only information they

could furnish resulted from conversations with, or advice given to, the

President.” He supported the doctrine by noting that “[s]ubpoenas have been

quashed [in judicial proceedings] where it appeared that all the testimony to

be elicited from a witness would be privileged.”

270

Rehnquist urged

Congress to “distinguish” between senior presidential advisers and agency

officials, arguing the “former should not be required to appear at all, since

all of their official responsibilities would be subject to a claim of

privilege.”

271

In short, because almost all of the information a senior

presidential adviser could testify to about his or her official duties would be

sensitive information, the adviser would not appear at all to protect that

information.

But as Congress has gotten more aggressive in seeking to compel

testimony from close presidential advisers—usually for political gain—the

executive branch’s theory has grown well beyond a policy designed to

protect the confidentiality of presidential communications, and has become

an absolute immunity based on the status of the individual and formal

separation of powers principles.

272

The executive branch has developed the

immunity doctrine into an absolute position that authorizes the president to

direct all current and former senior advisers to refuse to comply with a

congressional subpoena if the requested testimony relates to the advisers’

“official duties,” even if much of the relevant information has already been

made public and the “official duties” are entirely unrelated to advising the

president or to presidential communications.

273

The executive branch’s assertion that the president has the authority to

direct a former official not to comply with a congressional subpoena based

269. Rehnquist Memorandum, supra note 21, at 5–7.

270. Executive Privilege Hearings, supra note 1, at 435, 437 (statement of William H. Rehnquist,

Assistant Att’y Gen., Office of Legal Counsel, United States Department of Justice).

271. Id. at 437.

272. See McGahn Immunity Opinion, supra note 118, at 3–7; Immunity of the Assistant to the

President & Dir. of the Off. of Pol. Strategy & Outreach from Cong. Subpoena, 38 Op. O.L.C., slip op.

at 1–3 (July 15, 2014).

273. See Testimonial Immunity Before Cong. of the Assistant to the President & Senior Couns. to

the President, 43 Op. O.L.C., slip op. at 3 (July 12, 2019) (concluding that Kellyanne Conway was

immune from a subpoena seeking her testimony about Hatch Act violations reported by the Office of

Special Counsel because her public press statements were part of her official duties).

2020] THE EXECUTIVE’S PRIVILEGE 159

on the doctrine of immunity illuminates its fundamental theoretical

understanding of executive privilege as an affirmative constitutional

authority. OLC has never publicly provided a rationale to support such an

authority over private citizens. It can only be explained as a direct

consequence of the executive branch’s doctrine that executive privilege

provides the president an affirmative, absolute authority to control the

disclosure of information to Congress.

274

And the fact the president has

constitutional authority to combat any congressional action threatens that

authority.

b. Protective Assertion of Executive Privilege. The second prophylactic

doctrine is the concept of a “protective” assertion of executive privilege. If a

congressional committee insists on a rapid response to an information

demand, the president can utilize a “protective assertion” of executive

privilege, which allows the executive branch to immunize the official

responsible for withholding the information without the need for an actual

assertion of executive privilege, any balancing, or review of particular

documents.

275

Instead, the executive branch claims that the president has the

authority to make a protective assertion of executive privilege to ensure the

executive branch has an opportunity to review the documents to determine

if they fit within the scope of executive privilege.

President Clinton was the first to use this tactic, making a protective

assertion of privilege over a collection of documents from the White House

Counsel’s Office that had been subpoenaed by a congressional committee.

276

The opinion claimed that the protective assertion was necessary because of

the “deadline imposed” by the committee and “the volume of documents that

must be specifically and individually reviewed for possible assertion of

privilege and the need under the directive to consult with the Attorney

274. See Jonathan Shaub, The Little-Noticed Way the McGahn Litigation Could Shape Congressional

Oversight, L

AWFARE (Aug. 23, 2019, 11:54 AM), https://www.lawfareblog.com/little-noticed-way-

mcgahn-litigation-could-shape-congressional-oversight [https://perma.cc/EUL7-W2MA]; Jonathan

Shaub, Testimonial Immunity, Executive Privilege and the President’s Authority over Former Officials,

AWFARE (May 22, 2019, 6:34 PM), https://www.lawfareblog.com/testimonial-immunity-executive-

privilege-and-presidents-authority-over-former-officials [https://perma.cc/D5MQ-23KL].

275. See White House Couns. Assertion, supra note 66, at 1; Letter from William P. Barr, Att’y Gen.,

U.S. Dep’t of Just., to President Donald J. Trump 2 (May 8, 2019),

https://int.nyt.com/data/documenthelper/819-barr-trump-letter-privilege/fe8c83dc6778bfe4bb74/

optimized/full.pdf#page=1[https://perma.cc/L5DU-UXK3] (requesting that the President make a

“preliminary, protective assertion of executive privilege designed to ensure [his] ability to make a final

assertion, if necessary, over some or all of the subpoenaed materials”); ‘Protective’ Assertion, supra note

124.

276. White House Couns. Assertion, supra note 66, at 1; see also Prophylactic Executive Privilege,

supra note 240 (“The first [protective assertion] was by President Clinton.”).

160 DUKE LAW JOURNAL [Vol. 70:nnn

General.”

277

The protective assertion was “designed to ensure [the

president’s] ability to make a final decision . . . as to which specific

documents [were] deserving of a conclusive claim of executive privilege.”

278

Clinton’s protective assertion was, accordingly, followed by a formal

assertion in a matter of weeks. The opinion supporting this assertion

undertook a balancing inquiry and ultimately withheld only selected

documents.

279

In response to committees moving more quickly to use contempt to

force the president to take the politically accountable step of formally

declaring privilege, the executive branch watered down the idea of a

protective assertion of privilege.

280

President Trump, relying on the Clinton

precedent, made a protective assertion of privilege on two separate

occasions. The first assertion was invoked in response to a subpoena for a

large set of documents related to the investigation of Special Counsel Robert

Mueller.

281

The second assertion was invoked against a much smaller set of

documents related to the Commerce Department’s decision to include a

citizenship question on the U.S. Census.

282

President Trump’s protective

assertions, however, have not been followed up by formal assertions.

283

Instead, as happened in the evolution of the subpoena, the protective

assertions appear to have simply become another phase in the ongoing

negotiations. A protective assertion of privilege has become another tool the

executive branch may use to assert a prophylactic form of executive privilege

and avoid the balancing inquiry that is at the heart of the privilege.

284

The

277. White House Couns. Assertion, supra note 66, at 1.

278. Id.

279. See id. at 2 (outlining a formal assertion on May 23, 1996 over certain documents out of the set

over which President Clinton made a protective assertion on May 8, 1996).

280. See Prophylactic Executive Privilege, supra note 240.

281. Letter from Stephen E. Boyd, Assistant Att’y Gen., Off. of Legis. Affs., U.S. Dep’t of Just., to

Jerrold Nadler, Chairman, House Comm. on the Judiciary 1 (May 8, 2019),

https://assets.documentcloud.org/documents/5993527/Chairman-Nadler-Letter-8-May-2019.pdf

[https://perma.cc/YWU8-M6KU] (advising the committee “that the President has asserted executive

privilege over the entirety of the subpoenaed materials” and the “this protective assertion of executive

privilege ensures the President’s ability to make a final decision whether to assert privilege following a

full review of these materials”).

282. Boyd-Cummings Letter, supra note 69, at 2.

283. President Trump’s protective assertion over the census documents was accompanied by a formal

assertion over a specific set of “priority” documents that the committee had identified. See id.; see also

Prophylactic Executive Privilege, supra note 240. But the protective assertion—which was justified by

the need to review the rest of the documents to consider a formal claim of privilege—was never followed

by a formal assertion over any subset of those documents. Prophylactic Executive Privilege, supra note

240.

284. See Julie Hirschfeld Davis & Charlie Savage, Census Fight Grows as House Panel Backs

Contempt and Trump Asserts Privilege, N.Y.

TIMES (June 12, 2019),

https://www.nytimes.com/2019/06/12/us/politics/us-census-2020-trump.html [https://perma.cc/KY8Q-

2020] THE EXECUTIVE’S PRIVILEGE 161

executive branch’s noncompliance with the relevant subpoenas was justified

solely by the need to protect the president’s underlying authority, and that

need requires no balancing of congressional interests.

A protective assertion of privilege, like a formal assertion, informs the

committee that the executive branch official will not comply with the

congressional subpoena—and will not be prosecuted for contempt for that

noncompliance—because the president needs more time to review the

documents to determine if any of them warrant an actual assertion of

executive privilege. But, unlike a formal assertion of privilege, a protective

assertion dispenses with any need to analyze the specific information or to

weigh the executive branch’s confidentiality interests against the

congressional need for that information.

285

It establishes an absolute shield

that prevents the inquiry from even reaching the situational, qualified

balancing that applies to a formal assertion of executive privilege. If the

congressional subpoena is for only a single document or a small set of

documents, or if the committee narrows its subpoena to only require

production of a small set of “priority documents,” then a protective assertion

is not possible.

286

But, in those cases, the balancing necessary for a formal

assertion is much easier. It is almost impossible to establish a “demonstrable

need” for a few specific documents, particularly when Congress has no idea

what is in those documents.

c. Deposition-Counsel Requirement. The third—and most recent—

prophylactic doctrine established by the executive branch is the purportedly

constitutional requirement that executive branch officials be accompanied

by agency counsel at congressional depositions. As the House of

Representatives expanded the number of committees able to issue subpoenas

for staff depositions, various committees started to use this authority to

attempt to question agency officials in person after subpoenas for documents

went unanswered. OLC, relying on scattered suggestions in past executive

branch writings over the years, issued a formal opinion concluding that

executive branch officials have the absolute authority to direct an inferior

official not to comply with a congressional subpoena seeking a deposition if

agency counsel is excluded, as it would be under the House rules.

287

The

YHEH] (describing the ongoing negotiations over documents related to the inclusion of a citizenship

question on the 2020 census); Nicholas Fandos, Accord Opens Up Key Documents in Mueller Files, N.Y.

TIMES, June 11, 2019, at A1 (discussing the negotiations over documents related to the Mueller report).

285. See Prophylactic Executive Privilege, supra note 240.

286. See id. (noting that a protective assertion of executive privilege was not a possibility for the

president over the “priority documents” identified and subpoenaed by the committee).

287. See Attempted Exclusion of Agency Couns., supra note 3, at 13 (“[We] further advised that the

subpoenas that required [executive branch employees] to appear without agency counsel, over the

162 DUKE LAW JOURNAL [Vol. 70:nnn

opinion rests on the premise that any burden on the president’s authority to

control the dissemination of information is unconstitutional—and may be

countermanded by a presidential directive, without any need to analyze or

balance congressional interest.

288

Therefore, this prophylactic doctrine, like the others, is absolute,

despite the fact that the underlying authority the privilege is purportedly

necessary to protect—the president’s authority to control the dissemination

of information—is qualified. Of course, the lack of agency counsel would

not definitively result in the disclosure of any potentially privileged

information. OLC had formerly concluded that an agency could pay private

counsel to accompany the executive branch employee or official and that

private counsel could work with the agency to ensure the individual did not

disclose any privileged information.

289

But OLC then went further,

concluding that even the possibility of an inadvertent disclosure or failure of

private counsel to protect anything potentially privileged was an

unconstitutional burden on the president’s prerogative.

290

* * *

These prophylactic doctrines are justified by the need to “protect” the

president’s absolute authority to control the wide swath of information

covered by the components of executive privilege. They are absolute. They

require no balancing or inquiry into Congress’s interests, needs, or

constitutional authority. And they cannot be described as policies or

practices designed to ensure the president can consider executive privilege

when necessary. Rather, these doctrines are, to the executive branch,

constitutional requirements that Congress cannot countermand by statute or

by any other means. The immunity of senior advisers, protective assertions

of privilege, and the deposition-counsel requirement shield executive branch

officials from any punishment for refusing congressional information

demands.

The president retains the authority to formally assert executive privilege

over specific documents and information because of the concrete,

Executive Branch’s objections, exceeded the Committee’s lawful authority and therefore lacked legal

effect.”).

288. See id. at 2 (concluding that Congress could “not compel an executive branch witness to appear

without agency counsel” as it would “compromise the President’s constitutional authority to control the

disclosure of privileged information and to supervise the Executive Branch’s communications with

congressional entities”).

289. See Auth. of the Dep’t of Health & Hum. Servs. To Pay for Priv. Couns. To Represent an Emp.

Before Cong. Comms., 41 Op. O.L.C., slip op. at 1 (Jan. 18, 2017) (“An agency may thus retain and pay

for such counsel if it has both statutory authority and an available appropriation to do so.”).

290. Attempted Exclusion of Agency Couns., supra note 3, at 17–18.

2020] THE EXECUTIVE’S PRIVILEGE 163

identifiable harm they may cause to particular interests or even their

institutional harm. But he almost never has to take that step. President Trump

has asserted boldly that he would “fight ‘all the subpoenas,’” and his

administration’s refusal to engage in the accommodation process in many

instances

291

led to a spate of commentary that the administration was

distorting executive privilege or acting unlawfully.

292

And he was impeached

for obstructing the House’s impeachment inquiry by refusing to comply with

the House’s subpoenas.

293

Yet he only formally asserted executive privilege

once, over a small number of census documents.

294

Similarly, the

Republican-controlled House lambasted the Obama administration’s failure

to comply with its subpoenas.

295

But President Obama only formally asserted

the privilege once.

296

The practices and doctrines on which the executive branch currently

relies to fetter congressional oversight are almost wholly prophylactic ones,

designed to protect the president’s asserted authority to control the

dissemination of information. And they are justified, as a matter of

constitutional theory, as necessary to protect that affirmative constitutional

authority. To the extent “executive privilege” is used to refer to the

president’s authority to withhold information from Congress, these

prophylactic measures are executive privilege. And they render Congress

unable to conduct oversight and even unable to compel evidence when

considering impeachment. The conflation of executive privilege with

undifferentiated “components,” which encompass an enormous amount of

information and the centralization of information control in the president,

has led to an imbalance between the branches. Redressing that imbalance

requires establishing a theoretical account of executive privilege that

291. See Jeremy Diamond & Allie Malloy, Trump at War with Democrats: ‘We’re Fighting All the

Subpoenas,’ CNN

(Apr. 24, 2019, 3:40 PM), https://www.cnn.com/2019/04/24/politics/donald-trump-

fight-subpoenas-don-mcgahn-ridiculous/index.html [https://perma.cc/D4TC-LL8X].

292. See, e.g., John E. Bies, Constitutional Hardball and Congress’s Oversight Authority, LAWFARE

(Apr. 27, 2019, 10:00 AM), https://www.lawfareblog.com/constitutional-hardball-and-congresss-

oversight-authority [https://perma.cc/46AV-9HJU].

293. H.R. Res. 766, 116th Cong. art. II (2019) (“Donald J. Trump has directed the unprecedented,

categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to

its ‘sole Power of Impeachment.’”).

294. See Boyd-Cummings Letter, supra note 69, at 2 (notifying Chairman Cummings that the

president asserted his executive privilege over census documents).

295. See, e.g., Lamar Smith, Ed Royce, Jeff Miller, Trey Gowdy, Jeb Hensarling & Jason Chaffetz,

Mr. Obama, Don’t Let Secrecy Be Your Legacy: Republican Chairmen, USA

TODAY (Feb. 9, 2016, 1:05

PM), https://www.usatoday.com/story/opinion/2016/02/09/obama-administration-least-transparent-epa-

state-doj-clinton-benghazi-column/80050428 [https://perma.cc/ASR9-QEZY].

296. See PRESIDENTIAL CLAIMS OF EXECUTIVE PRIVILEGE, supra note 39, at 27–28; Fast & Furious

Assertion, supra note 28, at 8 (concluding that the president “may properly assert executive privilege

over the documents at issue” and “request[ing] that [he] do so”).

164 DUKE LAW JOURNAL [Vol. 70:nnn

recognizes the legitimate confidentiality interests and information needs of

the two branches but prevents the executive branch from relying on

prophylaxis to render its interests superior. The following section sets out

one such theoretical framework, the Executive’s privilege.

III.

THE EXECUTIVE’S PRIVILEGE

Current thought accepts the existence “of two implied powers under the

Constitution” that serve to counteract each other—congressional oversight

and executive privilege.

297

As Rehnquist explained, “The Constitution does

not expressly confer upon the executive any such privilege, any more than it

expressly confers upon Congress the right to use compulsory process in the

aid of its legislative function.”

298

Congress understands executive privilege

to extend no further than the facts of Nixon, which provided a qualified

privilege against only the production of presidential communications, a

category that Congress defines narrowly.

299

And it understands its own

implied authority to demand information from the executive branch in

support of its constitutional functions as virtually unlimited. The executive

branch, as described, understands executive privilege as an implied,

affirmative constitutional authority that allows the president to control the

dissemination of a broad scope of information.

300

Executive privilege, it

believes, applies equally to oversight, impeachment, and legislation, a

position adopted by OLC in the context of the impeachment of President

Trump.

301

But instead of inferring countervailing constitutional authorities to

maintain a particular constitutional balance, the simpler—and more

methodologically sound—position is that neither implied authority exists, at

least as conceived by each respective branch. That is, Congress lacks the

authority to compel the president to disclose information pursuant to its

oversight authority, and the president has no affirmative authority to control

297. Peterson, supra note 7, at 81.

298. Executive Privilege Hearings, supra note 1, at 429 (statement of William H. Rehnquist,

Assistant Att’y Gen., Office of Legal Counsel, United States Department of Justice).

299. See P

RESIDENTIAL CLAIMS OF EXECUTIVE PRIVILEGE, supra note 39, at 22; see also

Memorandum of Points and Authorities in Support of Plaintiff ’s Motion for Summary Judgment at 19–

20, Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013) (No. 1:12-cv-

1332); Wright, supra note 4, at 444.

300. See supra Part I.

301. See, e.g., Exclusion of Agency Couns. from Cong. Depositions in the Impeachment Context, 43

Op. O.L.C., slip op. at 2–3 (Nov. 1, 2019) [hereinafter Depositions in the Impeachment Context]. In the

memorandum, OLC did acknowledge that the showing of need Congress has to make to overcome a

privilege assertion may be different in the impeachment context. See id. at 3 n.1. But it did not have to

address that question because the prophylactic deposition-counsel requirement eliminated the need for

any balancing of interests. Id.

2020] THE EXECUTIVE’S PRIVILEGE 165

the dissemination of information within and outside of the executive branch.

Instead, the best understanding of executive privilege is not as an evidentiary

privilege or affirmative constitutional authority, but as a true “privilege” in

the constitutional sense,

302

an immunity of the president from compelled

process for purposes of oversight—the Executive’s privilege.

The Executive’s privilege is a limitation on Congress’s implied

oversight authority—or more accurately, a refusal to infer congressional

oversight authority to issue compelled process to the president because of

the significant separation of powers concerns that inference would engender.

Given the Constitution’s specific checks and balances between the two

branches, as well as historical practice dating to George Washington, it

would represent a significant, additional interpretive step to infer

congressional authority to compel the president to provide information in

furtherance of legislative or oversight authority.

The Executive’s privilege, however, applies only to congressional

oversight authority.

303

History makes clear that there is no such limitation on

Congress’s impeachment authority. Nor would the Executive’s privilege be

relevant to Congress’s express authority to draft and pass legislation that is

“necessary and proper” to the fulfillment of its constitutional duties.

304

Executive privilege is not an affirmative authority to control the

dissemination of particular categories of information, as the executive

branch currently understands it. It is a lack of congressional oversight

authority to compel the president to disclose information. The president must

make the factual showing necessary to invoke such a privilege, however. In

the words of Rehnquist, executive privilege, as historically understood,

requires “a demonstrable justification that executive withholding will further

the public interest” and cannot be based solely on undifferentiated

confidentiality interests.

305

The current impotence of Congress in oversight

disputes results directly from the executive branch’s creation of a

freestanding affirmative presidential authority to control information.

Eliminating that freestanding constitutional authority would restore some

balance to the branches and radically alter the practice of oversight.

306

And

it would provide a shared theoretical and constitutional foundation on the

302. See supra note 14 and accompanying text.

303. See infra Part III.B.

304. See U.S.

CONST. art. I, § 8.

305. Executive Privilege Hearings, supra note 1, at 431 (statement of William H. Rehnquist,

Assistant Att’y Gen., Office of Legal Counsel, United States Department of Justice).

306. Other reforms, including legislation, could try to balance the legitimate confidentiality interests

of the executive branch with the legislative and oversight interests of Congress. Such reforms are only

possible, however, if there is a shared constitutional understanding of executive privilege and if the

current prophylactic executive privilege is eliminated.

166 DUKE LAW JOURNAL [Vol. 70:nnn

basis of which individual privilege disputes could be negotiated and litigated

instead of each branch retreating to its own, diametrically opposed

constitutional theory. Most scholarship on executive privilege ultimately

rejects this pursuit and concludes that it is either futile or unwise to attempt

to resolve the longstanding constitutional dispute between the branches.

Rozell, for example, decides that “[t]here is no need for any precise

definition of the constitutional boundaries surrounding executive privilege”

and that “[s]uch a power cannot be subject to precise definition.” But the “do

nothing” approach is no longer possible given the development of the

prophylactic executive privilege, at least if one believes congressional

oversight has some inherent value. Although it may not be possible to choose

in advance whether the Constitution dictates that the executive branch or

Congress should win in any individual dispute, finding a common

constitutional ground is possible—and necessary.

A. The Executive’s Privilege as Immunity from Congressional Oversight

Process

Where the president is the subject of congressional oversight and

inquiry, executive privilege should not be understood as a doctrine about an

affirmative, implied constitutional authority belonging to the president. It is

not an affirmative “privilege” that the president may exercise. Instead, it is

an immunity belonging to the president, a limitation on Congress’s implied

constitutional authority. Although Congress may investigate, call for

information, and issue compulsory process generally in support of its

oversight authority, the president is privileged against such process. Or, in

other words, Congress’s general, implied oversight powers of inquiry do not

encompass the president.

1. An Immunity Grounded in Historical Practice. The comprehensive

histories of “executive privilege” that others have undertaken provide

substantial support for this view. As just a few early examples illustrate,

President George Washington’s Cabinet, which, at the time, included

Alexander Hamilton, Henry Knox, Edmund Randolph, and Thomas

Jefferson, was “of one mind,” that, although a House investigative

committee could call for papers, “the Executive ought to communicate such

papers as the public good would permit, [and] ought to refuse those the

disclosure of which would injure the public.” Neither a committee nor the

House “ha[s] a right to call on the head of a dep[artment], who [and] whose

2020] THE EXECUTIVE’S PRIVILEGE 167

papers were under the [president] alone, but that the comm[ittee should]

instruct their chairman to move the [H]ouse to address the President.”

307

In 1794, the Senate initially “direct[ed]” Secretary of State Edmund

Randolph to disclose diplomatic correspondence, but then amended the

motion to address the president and to “request” rather than “direct” that the

president disclose the correspondence.

308

House resolutions of inquiry

continue to make that distinction today, directing lower executive officials

to provide information but merely requesting that the president do so.

309

response to the Senate’s amended resolution addressing the president in

1794, Attorney General William Bradford concluded it was “the duty of the

Executive to withhold such parts of the said correspondence as in the

judgment of the Executive shall be deemed unsafe and improper to be

disclosed.”

310

The Senate resolution did not include, as others had, an express

exception allowing the president to withhold parts of the requested

information, but Bradford reasoned that

[e]very call of this nature, where the correspondence is secret and no

specific object pointed at, must be presumed to proceed upon the idea that

the papers requested are proper to be communicated[;] & it could scarcely

be supposed, even if the words were stronger[,] that the Senate intended to

include any Letters[,] the disclosure of which might endanger national

honour or individual safety.

311

Similarly, as president, Thomas Jefferson responded to a House

resolution requesting information about the conspiracy against the United

States involving Vice President Aaron Burr by providing all information

relevant to Burr but withholding other names.

312

As Jefferson explained,

“[i]n this state of the evidence, delivered sometimes, too, under the

restriction of private confidence, neither safety nor justice will permit the

exposing names, except that of the principal actor, whose guilt is placed

beyond question.”

313

And President James Monroe refused to provide

information about particular charges against a naval officer, reasoning that

“the publication of those documents might tend to excite prejudices which

307. Thomas Jefferson, Anas (Apr. 18, 1793), reprinted in 1 THE WRITINGS OF THOMAS JEFFERSON

189–90 (Paul Leicester Ford ed., N.Y., G.P. Putnam’s Sons 1892).

308. See Abraham D. Sofaer, Executive Privilege: An Historical Note, 75

COLUM. L. REV. 1318,

1319 (1975).

309. See H

OUSE RESOLUTIONS OF INQUIRY, supra note 145, at 1–2.

310. Sofaer, supra note 308, at 1320.

311. Walter Dellinger & H. Jefferson Powell, The Attorney General’s First Separation of Powers

Opinion, 13 C

ONST. COMMENT. 309, 316 (1996) (reprinting Bradford’s opinion in full).

312. Hist. of Refusals I, supra note 34, at 754–55.

313. Thomas Jefferson, Message to the Senate and House of Representatives (Jan. 22, 1807), in 1

ESSAGES AND PAPERS OF THE PRESIDENTS, supra note 43, at 400.

168 DUKE LAW JOURNAL [Vol. 70:nnn

might operate to the injury of” the ongoing investigations of the charges

against the officer.

314

President Andrew Jackson, faced with an information request, opined

that the

executive is a coordinate and independent branch of the Government

equally with the Senate, and I have yet to learn under what constitutional

authority that branch of the Legislature has a right to require of me an

account of any communication, either verbally or in writing, made to the

heads of Departments acting as a Cabinet council.

315

And after the Senate called for papers from an executive branch official

in the Bureau of Corporations relating to President Theodore Roosevelt’s

decision not to use the Sherman Act to block an acquisition, the president

“ordered [the official] in writing to turn over to [him] all the papers in the

case” and informed a senator that “[t]he only way the Senate or the

committee can get those papers now is through my impeachment.”

316

The history of presidents withholding documents from Congress is

replete with similar statements and refusals to turn over information, each

based on the identified, concrete harm the disclosure of particular

information would cause.

317

And even skeptics of executive privilege

recognize this history, though they interpret it differently

318

and more

narrowly. They construe historical resolutions “requesting,” rather than

demanding, information from the president as examples in which Congress

did not use its full constitutional authority, rather than historical recognition

of the Executive’s privilege against compelled congressional process.

319

These historical examples can be—and have been—interpreted in a variety

of ways, particularly as to the scope of the president’s authority to withhold

information and the types of information over which he may exercise that

authority.

But these historical examples establish, quite clearly, that the Framers

and subsequent presidents believed—as the executive branch does now—

that Congress’s oversight authority to demand information from the

314. James Monroe, Message to the House of Representatives (Jan. 10, 1825), in 2 MESSAGES AND

PAPERS OF THE PRESIDENTS, supra note 43, at 847.

315. Andrew Jackson, Special Recorded Message to Senate (Dec. 12, 1833), in 3

MESSAGES AND

PAPERS OF THE PRESIDENTS, supra note 43, at 1255.

316. Cox, supra note 2, at 1403–04 & n.72.

317. See E

XECUTIVE PRIVILEGE, supra note 5, at 29–44 (collecting the historical examples).

318. See R

ECLAIMING ACCOUNTABILITY, supra note 16, at 88–91.

319. See, e.g., id.; Cox, supra note 2, at

1397 (eliminating a number of historical examples from the

list of historical claims of privilege “upon the ground that the congressional request explicitly stated that

the President should decide whether furnishing the papers would be in the public interest” because, in

such situations, “there was no need for a claim of constitutional right”).

2020] THE EXECUTIVE’S PRIVILEGE 169

president is not unlimited and that the president has some inherent discretion

about when to comply with those demands based on identified, concrete

harms that disclosure could engender. This historical gloss is particularly

vital here because there is no constitutional text to rely on and no Supreme

Court precedent addressing executive privilege in the context of

congressional oversight.

320

Moreover, each branch uses historical practice as

the foundation for making its constitutional arguments and explaining the

doctrine of executive privilege.

321

And the Supreme Court has affirmed that

“longstanding practice” should be “‘a consideration of great weight’ in cases

concerning ‘the allocation of power between [the] two elected branches of

Government.’”

322

Understanding the nature of that historical practice is thus

paramount in determining the validity of the executive branch’s more recent

constitutional doctrine.

Recognizing that the only constitutional “privilege” in the context of

congressional oversight is the Executive’s privilege against compelled

congressional process is consistent with this historical practice but also

eliminates the affirmative presidential authority that underlies the executive

branch’s current prophylactic doctrine. Some scholars would go farther and

assert that the president has no constitutional authority to withhold

information at all.

323

They argue based on history, theory, and structuralism

that the executive privilege is a “myth” and the executive branch must yield

to congressional demands.

324

In that conception, this kind of complete

congressional access furthers transparency and democracy and is more in

320. See NLRB v. Noel Canning, 573 U.S. 513, 526 (2014) (“We have not previously interpreted the

Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the

compromises and working arrangements that the elected branches of Government themselves have

reached.”); Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers,

126 H

ARV. L. REV. 411, 417–18 (2012) (highlighting the significance of gloss for interpreting the

separation of powers, a subject on which the Constitution provides little guidance).

321. See Hist. of Refusals I, supra note 34, at 751; Hist. of Refusals II, supra note 34, at 783, 796;

ODD GARVEY & ALISSA M. DOLAN, CONG. RSCH. SERV., R42670, PRESIDENTIAL CLAIMS OF

EXECUTIVE PRIVILEGE: HISTORY, LAW, PRACTICE, AND RECENT DEVELOPMENTS 1 (2012) (discussing

the various judicial precedents and dating the doctrine to 1792).

322. Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (alteration in original) (quoting Noel

Canning, 573 U.S. at 524–26).

323. See, e.g., Secrecy and Separated Powers, supra note 10, at 493–96 (“This Article concludes that

there is no such thing as a constitutionally based executive privilege, and courts—in the face of executive

privilege claims—should order compliance with any statutorily authorized demands for executive branch

information.”).

324. See generally B

ERGER, supra note 5 (arguing that the president does not have any constitutional

authority to refuse to provide information and that the historical examples on which the executive branch

and scholars have relied do not support any such privilege).

170 DUKE LAW JOURNAL [Vol. 70:nnn

line with the Constitution’s design and elevation of the people above the

monarchy.

325

But rejecting the existence of executive privilege entirely goes too far.

History largely refutes that view,

326

and the Supreme Court recognized the

existence of constitutional confidentiality interests in Nixon.

327

As a practical

matter, in the information age in which so much discussion, debate, and

correspondence occurs in archivable, searchable digital files, a constitutional

structure that allows a single, politically motivated subcommittee chairman,

or even a single house of Congress, to unilaterally require the president to

turn over any information is troubling. The deliberations of the Department

of Justice over ongoing litigation could be publicly disclosed to the litigation

opponent by a single unfriendly legislator. All of the evidence and sources

in a criminal investigation could be laid bare before its completion.

Preliminary agency deliberations concerning administrative actions that

were not favored by a particular committee chairman could be disclosed to

members of that industry, spurring market changes, litigation, or political

and financial pressure on the agency’s decision-making.

None of these require bad faith on the part of the committee. Heightened

political instincts would suffice, and institutional ignorance may exacerbate

the problem. When deciding what to release, members of Congress and their

staff may not understand the sensitivity of the information sought or may not

trust the executive branch’s descriptions of the need to maintain its

confidentiality. Possibly, the material could be so politically helpful that the

member is willing to accept whatever damage it may cause. Carelessness, of

course, can also result in unwarranted disclosure, particularly with so many

moving parts and people in the legislative process.

Most people acknowledge the need for some secrecy—at least

temporarily—in the operation of the executive branch. But the question of

how to protect those legitimate confidentiality interests without allowing the

executive branch to use them as cover for wrongdoing or for political gain

has proven an intractable one. The crux of the disagreement is over what law

to apply.

325. See Aziz Huq, ‘Executive Privilege’ is a New Concept Built on a Shaky Legal Foundation,

ASH. POST (May 10, 2019, 10:07 AM), https://www.washingtonpost.com/outlook/executive-privilege-

is-a-new-concept-built-on-a-shaky-legal-foundation/2019/05/10/fa92b82e-7292-11e9-9eb4-

0828f5389013_story.html [https://perma.cc/HEX2-YYDN] (arguing that executive privilege “is a late,

dubious addition to constitutional law” and that “democracy and the rule of law are ill-served by the

concept”).

326. EXECUTIVE PRIVILEGE, supra note 5, at 195–208; see also supra text accompanying notes 312–

326.

327

United States v. Nixon, 418 U.S. 683, 705–06 (1974).

2020] THE EXECUTIVE’S PRIVILEGE 171

Recognizing the Executive’s privilege for what it is, an immunity from

compelled congressional oversight process, provides a mechanism for

resolving that disagreement. Concluding that Congress lacks absolute

authority to compel the president to provide information does not empower

the president so long as that recognition is coupled with the historical

requirement that executive privilege is a contingent, fact-specific decision.

This recognition would prevent the executive branch from employing

prophylactic executive privilege without taking Congress’s interests into

account and would eliminate its ability to rely on broad, undifferentiated

confidentiality interests.

2. A Contingent Immunity. The Executive’s privilege, as historically

understood and practiced, is a contingent immunity, one dependent on the

president’s personal decision that the disclosure of the specific information

requested—in whatever form that disclosure has been requested and with

whatever accompanying limitations on further, or public, disclosure are

available—would cause concrete, identified harm. As Professor Heidi

Kitrosser describes the early historical examples of the Executive’s

privilege, “each claim was made[,] explained openly . . . [and] defended in a

fact-specific manner.”

328

The President would determine that the release of

specific information would cause identifiable damage and explain that

decision. The exercise of the Executive’s privilege was thus largely a factual

determination based on the specific information sought.

329

Early assertions of executive privilege in the post-Watergate era, as the

executive branch doctrine began to develop, followed this historical,

situational model quite closely. In 1984, for example, OLC concluded that

documents could be withheld pursuant to executive privilege because

“disclosure of the . . . investigative documents w[ould] substantially interfere

with the Department’s ongoing criminal investigation in that case.”

330

The

opinion discussed the principles that support a general confidentiality

interest in open law enforcement files, but also went further to analyze the

“[s]pecific [a]pplication” of those principles to the investigation at issue.

331

And it drew from a statement prepared by the lead trial attorney on the

investigation that “outline[d] the specific ways in which release of

328. See RECLAIMING ACCOUNTABILITY, supra note 16, at 90.

329. See

Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review:

Three Branches, Three Powers, and Some Relationships, 1978 BYU L. R

EV. 231, 251 (1978)

(“[E]xecutive privilege . . . permit[s] the President to withhold information whose dissemination, in his

considered view, would be sufficiently detrimental to the public interest . . . .”);

Shalev Roisman,

Presidential Factfinding, 72 V

AND. L. REV. 825, 836 (2019).

330. Cong. Subpoenas of Dep’t of Just. Investigative Files, 8 Op. O.L.C. 252, 254 (1984).

331. Id. at 266.

172 DUKE LAW JOURNAL [Vol. 70:nnn

prosecutive or investigative memoranda would interfere with the ongoing

investigation.”

332

Similarly, a 1981 opinion by Attorney General William French Smith

supporting an assertion of executive privilege explained that OLC and the

attorney general had reviewed the documents and concluded that they

“relate[d] to sensitive foreign policy considerations” or were “of a highly

deliberative nature and involve[d] an ongoing decisional process of

considerable sensitivity” involving Canada.

333

The opinion identified

concrete harm as the basis for the assertion:

Because the policy options considered in many of these documents [we]re

still under review in the Executive Branch, disclosure to the Subcommittee

at th[at] present time could [have] distort[ed] that decisional process by

causing the Executive Branch officials to modify policy positions they

would otherwise espouse because of actual, threatened, or anticipated

congressional reaction.

334

The opinion then continued, citing Nixon, to also rely on the damage to

“future Executive Branch deliberations” if disclosure were permitted.

335

The historical emphasis on situational, fact-specific claims of privilege

is illustrated by Chief Justice John Marshall’s opinion in the Burr trial, in

which he stated that the court would respect a specific presidential

determination “that in his judgment the public interest required certain parts

of [the subpoenaed letter] to be kept secret” but that it would not simply

accept “no reason whatever for withholding the paper” other than an

assertion that it was confidential.

336

His opinion, like the early claims of

privilege, required a reason specific to the identified information to justify

withholding it, not a general interest in confidentiality of the type of

information or a generalized interest in confidentiality itself.

337

The initial

writings on privilege in the modern, post-Watergate era reflected this same

principle, including Rehnquist’s formulation that there must be a

“demonstrable justification” that “the disclosure of particular matters sought

would be harmful” to a specific national interest.

338

Moreover, restoring identified, concrete harm deriving from the

disclosure of specific information as the exclusive criterion for the invocation

332. Id.

333. Assertion of Exec. Privilege in Response to a Cong. Subpoena, 5 Op. O.L.C. 27–29, 32 (1981).

334. Id. at 29.

335. Id.

336. United States v. Burr, 25 F. Cas. 187, 192 (C.C. Va. 1807).

337. Id.

338. Executive Privilege Hearings, supra note 1, at 431 (statement of William H. Rehnquist,

Assistant Att’y Gen., Office of Legal Counsel, United States Department of Justice).

2020] THE EXECUTIVE’S PRIVILEGE 173

of the Executive’s privilege would narrow the scope of information

potentially encompassed by the Executive’s privilege and eliminate the

implied “constitutionalization” of the oversight process that has rendered

Congress virtually impotent. The focus on the effect of disclosure would also

restore the inquiry to a situational balancing, weighing potential harm from

the disclosure of particular documents against the congressional need for

them.

Executive branch agencies would no longer be reviewing subpoenaed

information to see if it would potentially fall within a particular component

and then claiming that all of that material would have to await a presidential

decision on privilege or waiver. Instead, the review would be for the

Executive’s privilege, which would entail the identification of specific

information the disclosure of which would cause concrete, identified harm.

Only that information would necessitate presidential review if the

congressional committee continued to push for it. Generalized,

undifferentiated interests in potential harm would not be a valid basis for the

exercise of—or review of—the Executive’s privilege.

339

As Archibald Cox

explained, after cataloguing the history of putative privilege assertions,

“nothing appears which even approaches a solid historical practice of

recognizing claims of executive privilege based upon an undifferentiated

need for preserving the secrecy of internal communications within the

Executive Branch.”

340

Separating the Executive’s privilege—a constitutional immunity—

from the various components and undifferentiated confidentiality interests

also more closely aligns the privilege with the needs of the executive branch.

There are categories of information that do not have historical analogues and

may not be protected by the existing common law privileges on which the

components of executive privilege are based. If the Executive’s privilege is

confined to the recognized components, then such information cannot be

protected no matter its potential detrimental impact. For example, the

Department of Health and Human Services resisted oversight requests sent

to a third-party contractor who had conducted cybersecurity tests of the

website healthcare.gov. The department was worried that if these reports

were turned over to Congress, they could be released publicly or otherwise

fall into the wrong hands.

341

The public release of the information would

339. This does not mean that there could not be other mechanisms, including legislation, for

recognizing undifferentiated, generalized confidentiality interests in particular information, just as there

are such mechanisms in judicial proceedings. The primary point is that those interests should not be

constitutionalized by subsuming them within the doctrine of executive privilege.

340. Cox, supra note 2, at 1404.

341. See Letter from Kathryn H. Ruemmler, Couns. to the President, to John Boehner, Speaker, U.S.

House of Representatives 1 (Dec. 15, 2013),

174 DUKE LAW JOURNAL [Vol. 70:nnn

have provided hackers and others a “roadmap” to attack the website, a

specific harm that the executive branch had valid reasons to guard against.

342

But the subpoenaed information did not fit into any existing “component” of

executive privilege.

In another instance, the Department of Treasury initially resisted

providing documents to Congress about the executive branch’s contingency

plans if Congress failed to raise the debt limit and instructed the Federal

Reserve Bank of New York (“FRBNY”), a quasi-public entity, to do the

same.

343

The Treasury and FRBNY ultimately turned the documents over,

but emphasized that public disclosure could cause “serious harm” because

the documents contained “potentially market sensitive and operationally

sensitive material,” serious confidentiality interests that do not fit neatly

within the components of privilege.

344

Whether these specific claims were

valid or not is irrelevant. And these controversies did not escalate to a

constitutional confrontation over the information. But federal agencies

undoubtedly have information that is not classified and may not fit into the

existing components of privilege. The public disclosure of that information

could potentially be very harmful, so harmful that the risks of handing it over

to a congressional committee may be hard to justify, particularly if the

agency can brief the committee privately or allow it to review the documents

without taking possession. Although the agency may convey these concerns

about disclosure to the congressional committee or subcommittee, there is

no guarantee the documents, once handed over, would be kept confidential.

The disclosure of such sensitive information—either purposefully,

accidentally, or as a result of breaches of information security—would not

be surprising.

Today, executive privilege is based upon an absolute, undifferentiated

need to preserve and protect the president’s authority to control all

information that potentially implicates a range of generalized,

https://oversight.house.gov/sites/democrats.oversight.house.gov/files/migrated/uploads/White%20Hous

e%20Counsel%20to%20Boehner%2012-15-13.pdf [https://perma.cc/C27M-2T7F] (“It is the view of

cybersecurity experts from across the Administration that these documents, if further disclosed, would

provide information to potential hackers that increases the risk they could penetrate healthcare.gov, the

Federal Data Services Hub, and other Federal IT systems.”).

342. Id.

343. See S

TAFF OF H. COMM. ON FIN. SERVS., SUBCOMM. ON OVERSIGHT & INVESTIGATIONS, 114TH

CONG., STAFF REPORT: THE OBAMA ADMINISTRATION’S DEBT CEILING SUBTERFUGE: SUBPOENAED

DOCUMENTS REVEAL TREASURY MISLED PUBLIC IN ATTEMPT TO “MAXIMIZE PRESSURE ON

CONGRESS,” 19–23 (Feb. 1, 2016), https://republicans-

financialservices.house.gov/uploadedfiles/debt_ceiling_report_final_01292015.pdf

[https://perma.cc/96Q2-GYJG] (describing the oversight dispute and characterizing the Treasury

Department as actively obstructing the committee’s investigation).

344. See id. at 293 (quoting a letter from the Treasury Department to the committee regarding its

response to the committee’s subpoenas).

2020] THE EXECUTIVE’S PRIVILEGE 175

undifferentiated confidentiality interests. The situational inquiry that formed

the core of the historical Executive’s privilege no longer exists. Recognizing

the Executive’s privilege as a presidential immunity that may be invoked

only where the president identifies specific, concrete harm from the

disclosure of specific documents would be both more consistent with

historical practice and more reflective of the appropriate constitutional

balance between the branches.

B. The Executive’s Privilege and Impeachment

Understanding the Executive’s privilege as an immunity that limits

Congress’s implied oversight authority also has other significant

consequences for the balance of power between the branches. Importantly,

it would eliminate executive privilege from the context of impeachment.

345

The executive branch concluded to the contrary during the House of

Representatives’ impeachment inquiry into President Trump.

346

President

Trump never asserted executive privilege formally during the House

impeachment inquiry or the Senate trial, nor did OLC undertake any

balancing inquiry or address whether that balancing inquiry is different in

impeachment than for traditional oversight.

347

Instead, Trump relied on

prophylactic doctrines such as testimonial immunity and the requirement of

agency counsel at a deposition to direct executive branch officials not to

comply with the House’s subpoenas on the basis of OLC opinions that

concluded these doctrines applied equally in an impeachment inquiry.

348

OLC reasoned that because executive privilege still theoretically applies—

345. By the same reasoning, understanding the Executive’s privilege as a limit on Congress’s

oversight authority would also have significant implications for the application of executive privilege to

legislation, since the power to pass any legislation is an explicit one provided for in the Constitution, not

an implied authority. OLC has concluded that the two are identical, reasoning that a statute requiring the

executive branch to provide tax returns to a congressional committee must be interpreted as consistent

with Congress’s implied oversight authority. Request for Tax Returns, supra note 169, at 1.

346. See, e.g., Depositions in the Impeachment Context, supra note 301, at 2–3 (“We believe that a

congressional committee must likewise make a showing of need that is sufficient to overcome the

privilege in connection with an impeachment inquiry.”).

347. Jonathan Shaub, Obstruction of Congress, Impeachment and Constitutional Conflict, L

AWFARE

(Jan. 10, 2020, 2:56 PM), https://www.lawfareblog.com/obstruction-congress-impeachment-and-

constitutional-conflict [https://perma.cc/U6UK-UG5H].

348. See Depositions in the Impeachment Context, supra note 301, at 4–5 (concluding that executive

branch officials have the constitutional authority to refuse to comply with deposition subpoenas issued as

part of the House’s impeachment inquiry if agency counsel is not permitted to attend); Letter from Steven

A. Engel, Assistant Att’y Gen., Off. of Legal Couns., U.S. Dep’t of Just., to Pat A. Cipollone, White

House Couns. 1–2 (Nov. 3, 2019) [hereinafter Eisenberg Immunity Letter],

https://www.justsecurity.org/wp-content/uploads/2020/01/ukraine-clearinghouse-olc-letter-opinion-

immunity-of-deputy-nsa-counsel-2019.11.3.pdf [https://perma.cc/UGZ8-39A3] (advising the White

House that presidential advisers who had been subpoenaed to testify as part of the impeachment inquiry

were immune from those subpoenas).

176 DUKE LAW JOURNAL [Vol. 70:nnn

before undertaking any balancing with respect to the president’s authority to

withhold specific information—the prophylactic doctrines designed to

protect the president’s affirmative privilege to control information continue

to apply as well.

349

But if understood properly as an immunity from oversight demands, the

Executive’s privilege has no application to compulsory process issued

pursuant to Congress’s impeachment authority. As Raoul Berger notes, with

respect to the English parliamentary practice on which the Framers modeled

the House’s impeachment authority, “Just as there is no executive limit on

the parliamentary power to impeach, so there can be no executive limit on

the power of Parliament to inquire whether executive conduct amounts to

impeachable conduct.”

350

The constitutional authority of Congress to conduct legislative

oversight, whatever its limits, is distinct from the respective constitutional

authorities of the House and Senate relative to impeachment.

351

In inferring

authority for Congress to pursue oversight, including by compulsory process,

the Supreme Court has made clear that the foundation of the authority is

legislative.

352

For example, in Senate Select, the D.C. Circuit concluded that

“[w]hile fact-finding by a legislative committee is undeniably a part of its

task, legislative judgments normally depend more on the predicted

consequences of proposed legislative actions and their political acceptability,

than on precise reconstruction of past events.”

353

And the Supreme Court

specified that Congress’s implied oversight authorities may be exercised

only with respect to a subject “on which legislation could be had”

354

and that

“the power to investigate must not be confused with any of the powers of

law enforcement.”

355

When exercising its oversight authority, Congress is

not “a law enforcement or trial agency.”

356

But impeachment reflects a separate constitutional authority, a judicial

power that represents an exception to the otherwise solely legislative

349. Depositions in the Impeachment Context, supra note 301, at 2–3.

350. B

ERGER, supra note 5, at 26–27.

351. See Trump v. Mazars USA, LLP, 940 F.3d 710, 754–67 (D.C. Cir. 2019) (Rao, J., dissenting)

(collecting historical examples and discussing the distinction between the two constitutional authorities),

vacated and remanded, 140 S. Ct. 2019 (2020).

352. See, e.g., Watkins v. United States, 354 U.S. 178, 187 (1957) (“The power of the Congress to

conduct investigations is inherent in the legislative process. That power is broad.”).

353. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C.

Cir. 1974) (en banc); see also Barr Memorandum, supra note 27, at 159 (“Congress will seldom have any

legitimate legislative interest in knowing the precise predecisional positions and statements of particular

executive branch officials.”).

354. McGrain v. Daugherty, 273 U.S. 135, 177 (1927).

355. Quinn v. United States, 349 U.S. 155, 161 (1955).

356. Watkins, 354 U.S. at 187.

2020] THE EXECUTIVE’S PRIVILEGE 177

authority granted by the Constitution.

357

The Constitution grants the House

of Representatives “the sole [p]ower of [i]mpeachment.”

358

The House acts

as “a prosecutorial body in an impeachment context,” similar to the role of a

grand jury.

359

And the Senate sits as a court in judgment over the House

charges, deciding whether to convict and remove the official from office.

360

Any implied authorities the House and Senate have in fulfillment of those

respective prosecutorial and judicial roles in impeachment are thus distinct

from the bodies’ implied oversight authorities.

361

Moreover, any limitations on that impeachment authority—such as a

presidential immunity—must also be inferred from that authority and general

principles of separation of powers. Understanding executive privilege as an

affirmative presidential authority to control information, as the executive

branch does, locates the source of power in Article II of the Constitution and

allows the executive to claim that authority no matter what power Congress

or one of its houses is exercising. Understanding executive privilege as an

immunity specific to Congress’s implied oversight authority, as this Article

proposes, locates the privilege in the specific grant of power to Congress in

Article I of the Constitution, which prevents the automatic extension of

executive privilege to impeachment.

357. See Kilbourn v. Thompson, 103 U.S. 168, 190–91 (1880) (noting the importance of having the

functions of each branch of government separated and clearly defined, with notable and explicit

exceptions including impeachment); Hayburn’s Case, 2 U.S. (2 Dall.) 409, 413 (1792) (quoting a 1792

letter from the North Carolina circuit court to the president claiming that “no judicial power of any kind

appears to be vested [in the legislature], but the important one relative to impeachments”).

358. U.S. C

ONST. art. I, § 2, cl. 5.

359. Keith E. Whittington, Must the House Vote To Authorize an Impeachment Inquiry?, L

AWFARE

(Oct. 9, 2019, 3:10 PM), https://www.lawfareblog.com/must-house-vote-authorize-impeachment-inquiry

[https://perma.cc/3AKP-DFCM]; see also T

HE FEDERALIST NO. 65, at 397 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) (noting impeachment transforms the House into a “national inquest”).

360. U.S.

CONST. art. I, § 3, cls. 6, 7; see also 1 THOMAS JEFFERSON, A MANUAL OF

PARLIAMENTARY PRACTICE FOR THE USE OF THE SENATE OF THE UNITED STATES § 53.16 (Washington,

Gov’t Printing Off. 1993) (1801) (“This [Senate] trial, though it varies in external ceremony, yet differs

not in essentials from criminal prosecutions before inferior courts.”).

361. Of course, that leaves open the question of which branch gets to determine whether a demand

for information is an oversight demand or an impeachment demand. OLC concluded that subpoenas

issued by House committees prior to the full House voting to authorize an impeachment inquiry were not

issued pursuant to congressional impeachment authority and need not be complied with. See House

Comms.’ Auth. To Investigate for Impeachment, 43 Op. O.L.C., slip op. at 2–3 (Jan. 19, 2020) (arguing

that House committees have no authority to issue subpoenas in the impeachment context except once a

formal impeachment has been approved by the full House). The Trump administration thus adopted a

blanket refusal to comply with any information demands from the House of Representatives in part

because it questioned whether the inquiries were in fact an impeachment inquiry. See Letter from Pat A.

Cipollone, Couns. to the President, to Nancy Pelosi, Speaker, U.S. House of Representatives 2–3 (Oct. 8,

2019), https://www.nytimes.com/interactive/2019/10/08/us/politics/white-house-letter-impeachment.

html [https://perma.cc/CP5V-TJEA] (noting that the president would not turn over papers under requests

for documents by the House in its informal impeachment inquiry).

178 DUKE LAW JOURNAL [Vol. 70:nnn

Consistent with the theoretical understanding of the Executive’s

privilege as an oversight immunity without application to impeachment,

presidents and others have recognized throughout the history of the country

that their ability to withhold information from Congress disappears in the

context of impeachment. In the same initial debates that occurred regarding

Washington’s authority to withhold information requested by Congress, he

and his advisers agreed that the president would not have such authority

during impeachment.

362

As President James K. Polk put it, acting pursuant

to its impeachment authority, the House could “penetrate into the most secret

recesses of the Executive Departments[,] . . . command the attendance of any

and every agent of the Government, and compel them to produce all papers,

public or private, official or unofficial.”

363

President Theodore Roosevelt

indicated that the only way Congress would get the papers provided him by

the Bureau of Corporations was “through [his] impeachment.”

364

As one of

the Framers of the Constitution, James Wilson, described in an essay on the

British Parliament, the House of Commons has “the character of grand

inquisitors of the realm” and “[t]he proudest ministers of the proudest

monarchs have trembled at the[] censures” of the House of Commons and

“have appeared at the bar of the house, to give an account of their conduct,

and ask pardon for their faults.”

365

A number of other statements by

presidents similarly distinguish between Congress’s oversight authority and

its impeachment authority, recognizing that there is no executive privilege

against demands for information in furtherance of the latter.

366

362. See 4 ANNALS OF CONG. 760–62 (1796) (statement of President George Washington) (noting

that the only authority the House had to request a treaty document was through impeachment, “which the

resolution ha[d] not expressed”); Jean Galbraith & Michel Paradis, George Washington’s Advisors

Agreed: Impeachment Did Away with Executive Privilege, J

UST SEC. (Oct. 25, 2019),

https://www.justsecurity.org/66713/george-washingtons-advisors-agreed-impeachment-did-away-with-

executive-privilege [https://perma.cc/36CS-YMKS] (noting that George Washington’s advisers had

expressed opinions that a formal inquiry was required before documents could be subpoenaed by the

president); Jean Galbraith & Michel Paradis, Opinion, Impeachment Trumps Executive Privilege. Ask

George Washington, W

ALL ST. J. (Oct. 22, 2019, 6:41 PM), https://www.wsj.com/articles/impeachment-

trumps-executive-privilege-ask-george-washington-11571784069 [https://perma.cc/99QR-HPZR]

(same).

363. James Polk, Message to the House of Representatives (Apr. 20, 1846), in 6

MESSAGES AND

PAPERS OF THE PRESIDENTS, supra note 43, at 2284.

364. Cox, supra note 2, at 1403–04 & n.72.

365. James Wilson, On the Legislative Authority of the British Parliament, in 2

THE WORKS OF

JAMES WILSON 520 (James DeWitt Andrews ed., Chi., Callaghan & Co. 1896).

366. President Cleveland, for example, withheld papers from the Senate in 1886 related to his

suspension of the U.S. Attorney for Alabama, noting that the Senate had no right to the papers “save

through the judicial process of trial on impeachment.” Grover Cleveland, Message to the Senate (Mar. 1,

1886), in 8

MESSAGES AND PAPERS OF THE PRESIDENTS, supra note 43, at 378–79. President Jackson

similarly opined that “where there is the slightest reason to suspect corruption or abuse of trust, no

obstacle which I can remove, shall be interposed to prevent the fullest scrutiny by all legal means. The

2020] THE EXECUTIVE’S PRIVILEGE 179

Even some of the foundational materials on which the executive branch

relies for its doctrine of executive privilege make clear that impeachment is

different. Attorney General Jackson’s 1941 memorandum on the

confidentiality of law-enforcement files

367

remains

368

the seminal document

on which the executive branch relies

369

to withhold such information from

Congress. But at the end of the analysis, Jackson noted, “where the public

interest has seemed to justify it, information as to particular situations has

been supplied to congressional committees.”

370

And he then identified one

such situation: “[P]ertinent information would be supplied in impeachment

proceedings . . . for the good of the administration of justice.”

371

The only formal assertion of executive privilege in an impeachment

inquiry occurred in June 1974, when President Nixon refused to turn over

the Watergate tapes to the House during its formal impeachment

investigation.

372

Nixon argued that

[i]f the Institution of an impeachment inquiry against a President were

permitted to override all restraints of separation of powers, this would spell

the end of the doctrine of separation of powers; it would be an open

invitation to future Congresses to use an impeachment inquiry, however

frivolously, as a device to assert their own supremacy over the executive,

and to reduce executive confidentiality to a nullity.

373

President Trump never formally asserted privilege, either during the

House impeachment investigation or his Senate trial. Instead, he relied solely

offices of all the Departments will be opened to you, and every proper facility furnished for this purpose.”

Letter from President Andrew Jackson, to Henry A. Wise, Chairman, Select Comm. on Investigations of

Abuses & Frauds of the Exec. Dep’ts, House of Representatives (Jan. 26, 1837),

https://www.loc.gov/resource/maj.01097_0261_0274/?sp=1&st=text [https://perma.cc/N4AQ-LPH2].

And President Grant noted the House’s authority to “require as a right in its demand upon the Executive”

all information necessary to an impeachment inquiry. Ulysses S. Grant, Message to the House of

Representatives (May 4, 1876), in 7

MESSAGES AND PAPERS OF THE PRESIDENTS, supra note 43, at 362.

367. See Jackson Memorandum, supra note 44, at 46 (“It is the position of this Department, restated

now with the approval of and at the direction of the President, that all investigative reports are confidential

documents of the executive department of the Government . . . .”).

368. See, e.g., Rod J. Rosenstein, Deputy Att’y Gen., U.S. Dep’t of Just., Remarks at the Bar

Association of Montgomery County’s Law Day Celebration (May 4, 2008),

https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-remarks-bar-

association-montgomery [https://perma.cc/D9C4-ZG53] (quoting at length from Jackson’s memorandum

to support the “bedrock principle . . . that [the Department] do[es] not discuss investigations”).

369. See Linder Letter, supra note 41, at 3–4 (discussing Jackson’s position).

370. Jackson Memorandum, supra note 44, at 51.

371. Id. (emphasis added).

372. See Philip Shabecoff, President Defies House Subpoena for More Tapes, N.Y.

TIMES, June 11,

1974, at A1, A30 (noting that Nixon had invoked executive privilege as a defense to releasing the tapes).

373. Text of Letter to Rodino from President Refusing To Furnish Subpoenaed Evidence, N.Y.

TIMES,

June 11, 1974, at A30 [hereinafter Letter to Rodino].

180 DUKE LAW JOURNAL [Vol. 70:nnn

on the potential applicability of privilege and asserted prophylactic

doctrines—testimonial immunity and the deposition-counsel requirement—

to reject demands for information, and he instructed officials not to comply

with congressional subpoenas based on his constitutional authority to control

information.

374

Nixon’s assertion in 1974 reflected his administration’s view of

executive privilege as an absolute authority to withhold information from

Congress, the courts, and the public that is unreviewable in court.

375

That

conception of an absolute privilege against Congress and the courts was

rejected unanimously in Nixon, the reasoning of which makes clear that a

specific need for information in the course of judicial proceedings

overcomes any generalized confidentiality interests.

376

President Nixon’s

determination that privilege was available in impeachment, supported by the

views of Attorney General Kleindienst, is a historical outlier. In an appendix

to a lengthy 1974 OLC memorandum on impeachment precedents, the office

collected historical statements about Congress’s authority to demand

information in impeachment.

377

Kleindienst’s contention that the privilege

applied—and, indeed, remained within the absolute discretion of the

president—is an extreme outlier in that collection.

378

No other historical

precedent in that collection or elsewhere supports the authority of the

president to withhold information that is relevant in an impeachment inquiry,

particularly not based on generalized confidentiality interests.

Understanding the Executive’s privilege as a limit on oversight

authority rather than an affirmative presidential authority or an evidentiary

privilege thus accounts for the historical understanding that Congress’s

demands for information pursuant to its impeachment authority are distinct

from its oversight demands. As an 1843 House Report stated, “The House of

Representatives has the power of impeachment . . . a power which implies

the right of inquiry on the part of the House to the fullest and most unlimited

extent.”

379

Different inferences about Congress’s authority to demand

374. See Depositions in the Impeachment Context, supra note 301, at 4–5; Eisenberg Immunity

Letter, supra note 348, at 1–2.

375. As Nixon wrote in his letter, “[t]his is the key issue in my insistence that the executive must

remain the final arbiter of demands on its confidentiality, just as the legislative and judicial branches must

remain the final arbiters of demands on their confidentiality.” Letter to Rodino, supra note 373, at A30.

376. United States v. Nixon, 418 U.S. 683, 713 (1974).

377. See generally O

FF. OF LEGAL COUNS., DEP’T OF JUST., LEGAL ASPECTS OF IMPEACHMENT: AN

OVERVIEW, app. III (1974) (collecting statements).

378. Id. app. III at 10–13.

379. 3 A

SHER C. HINDS, HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES 183 (1907). In

the Mazars litigation over President Trump’s personal financial records, the D.C. Circuit concluded that

the House had the power to investigate misconduct pursuant to its legislative authority and to “choose to

move from legislative investigation to impeachment” when it wanted to do so. Trump v. Mazars USA,

2020] THE EXECUTIVE’S PRIVILEGE 181

information thus arise from its distinct legislative and impeachment

authorities.

During the Trump impeachment inquiry, OLC asserted that the

testimonial immunity doctrine prohibited a deputy White House counsel

from complying with a House subpoena because “the commencement of an

impeachment inquiry only heightens the need to safeguard the separation of

powers.”

380

During the Nixon impeachment inquiry, Berger took the

opposite view, arguing that the impeachment power “constitutes a deliberate

breach in the doctrine of separation of powers.”

381

In his view, that meant

that “no arguments drawn from that doctrine (such as executive privilege)

may apply to the preliminary inquiry by the House or the subsequent trial by

the Senate.”

382

The better argument, however, is that impeachment is not a “deliberate

breach” of the separation of powers but a deliberate exception to the

separation of powers—a separate, purposeful grant of investigative and

judicial authority to Congress. That judicial power is not limited by doctrines

derived from the separation of powers that limit Congress’s legislative

authority. And the Executive’s privilege is best understood—both as a matter

of constitutional interpretation and historical practice—as a limit only on

Congress’s implied authorities in furtherance of its legislative functions. No

argument drawn from a limit on oversight should be applied to limit

Congress’s separate authority to consider and try impeachments. That does

not, of course, foreclose arguments that there should be limits on Congress’s

impeachment authority or procedures established to protect certain

information from public disclosure. But those arguments have to begin

LLP, 940 F.3d 710, 737 (D.C. Cir. 2019), vacated and remanded, 140 S. Ct. 2019 (2020). In their

arguments to the Supreme Court, the House relied solely on its legislative authority, not its impeachment

authority. Ultimately, the Court upheld the House’s authority to seek the records pursuant to its legislative

authority but remanded for the lower courts to apply a heightened scrutiny to the subpoenas since they

sought information from the President. Mazars, 140 S. Ct. at 2034–36; id. at 2037 (Thomas, J., dissenting)

(noting the House had not relied on its impeachment authority). However, a subpoena issued by a

committee pursuant to a House rule allowing for a subpoena in furtherance of the committee’s legislative

functions could arguably be considered not in furtherance of the House’s impeachment authority. The

OLC relied on this conclusion to advise the White House that it need not comply with subpoenas from

House committees issued prior to the full House vote to authorize an impeachment inquiry and on which

a former official relied in a declaration judgment action seeking to determine whether he must comply

with a subpoena for testimony issued prior to the full House vote. Complaint at 11–14, Kupperman v.

U.S. House of Representatives, No. 1:19-cv-3224 (D.D.C. Oct. 25, 2019).

380. Kyle Cheney & Andrew Desiderio, White House Officials Spurn Demand To Testify in

Impeachment Probe, P

OLITICO (Nov. 4, 2019, 10:02 AM), https://www.politico.com/news/

2019/11/04/white-house-officials-testify-impeachment-065318 [https://perma.cc/G3SH-45K3].

381. Raoul Berger, Impeachment: An Instrument of Regeneration, H

ARPER’S MAG., Jan. 1974, at

A14.

382. Id.

182 DUKE LAW JOURNAL [Vol. 70:nnn

explicitly with the nature and historical understanding of impeachment. And

they have to contend with a wealth of history that suggests that Congress’s

powers of inquiry are at their zenith in the course of considering or trying

impeachment.

ONCLUSION

Congress and the executive branch have long had contrary

constitutional understandings of executive privilege. The judiciary has never

resolved this dispute. Despite the prevailing view that resolution is neither

possible nor advisable, this Article proposes that it is now necessary. The

constitutional doctrine that the executive branch has developed allows it to

nullify oversight and, as demonstrated by the impeachment proceedings

against President Trump, even nullify Congress’s authority to gather

information when considering impeachment.

Almost every argument about the nature and existence of executive

privilege is grounded in and relies on historical practice. This Article is no

different. First principles of constitutional interpretation must be paired with

that history. Executive privilege is typically described as an implicit

constitutional authority, just as the countervailing congressional legislative

oversight authority has been described as an implicit constitutional authority

by the Supreme Court. Rather than inferring an affirmative constitutional

authority belonging to the president that counteracts Congress’s implicit

authority, the better interpretational practice defines Congress’s authority in

a manner that accounts for historical practice.

That definition is the Executive’s privilege, an immunity from

compulsory process issued by Congress in the exercise of its legislative

oversight authority. That immunity is contingent, and it applies only where

the president both determines the release of that information would cause

concrete, identifiable harm to the national interest and explains the basis for

that determination. Understanding executive privilege as this narrow

immunity accords with history and curbs the prophylactic practices and

constitutional doctrines on which the executive branch now relies to thwart

congressional demands for information. The definition also makes clear that

the doctrine of executive privilege does not apply to impeachment.

Establishing this theoretical foundation is both possible and advisable. And

it would go a long way toward restoring the constitutional balance between

the branches in information disputes.