Executive Privilege

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Louis Fisher, “Judicial Interpretations of Egan” (PDF, 234KB), November 13, 2009. The Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), is frequently cited to justify broad presidential powers over national security and classified documents. The ruling has caused confusion in the courts because initially the case began as one of statutory construction and was briefed with that understanding. However, when the decision was issued it added constitutional analysis of Article II presidential powers, while cautioning that the scope of executive authority depends on what Congress enacts in law.

Louis Fisher, “Congressional Access to National Security Information: Precedents from the Washington Administration” (PDF, 54KB), May 22, 2009.  The Justice Department, in its legal analysis and congressional testimony, has claimed that the President has exclusive and plenary authority over national security information and may withhold such materials from Congress.  It relies on precedents from the administration of George Washington to support that claim.  However, during the eight years of Washington’s presidency both houses of Congress regularly obtained national security documents to support legislative action on bills that authorized and funded programs.  The President did not possess or exercise exclusive and plenary authority over national security information.

Louis Fisher, "Congressional Access to National Security Information" (PDF, 73KB), 45 Harv. J. on Legis. 219 (2008). When invoking executive privilege, administrations often claim that their justification for withholding documents or testimony from Congress is particularly strong when the subject is national security. This article argues that such a claim mischaracterizes the President's constitutional role and fails to acknowledge the independent institutional needs of Congress to have access to national security information to fulfill the constitutional duties of enacting legislation, conducting oversight, and protecting the system of checks and balances. Also, judicial access to national security information has increased dramatically in the last half century to enforce the separation of powers and vindicate individual rights.

Book: Louis Fisher, The Politics of Executive Privilege (Durham: Carolina Academic Press, 2004), 272 pp.  Presidents and their advisers cite various legal principles when they withhold documents from Congress and refuse to allow executive officials to testify before congressional committees. Congress can marshal its own impressive list of legal citations to defend legislative access to information, even when Presidents assert executive privilege. These legal and constitutional principles, finely-honed as they might be, are often overridden by the politics of the moment and practical considerations. Efforts to discover enduring and enforceable norms in this area invariably fall short.

This book (individual chapters attached) explains the political settlements that decide most information disputes. Courts play a role, but it is a misconception to believe that handy cites from judicial opinions will win the day. Efforts to resolve interbranch disputes on purely legal grounds may have to give ground in the face of superior political muscle by a Congress determined to exercise the many coercive tools available to it. By the same token, a Congress that is internally divided or uncertain about its institutional powers, or unwilling to grind it out until the documents are delivered, will lose out in the quest for information. Moreover, both branches are at the mercy of political developments that can come around the corner without warning and tilt the advantage decisively to one side.

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Last Updated: 08/03/2012