Too Big A Canon in the President’s Arsenal: Another Look at United States v. Nixon

The article addresses the critical, and much-discussed, issue of the growth of executive branch secrecy from a unique perspective. It identifies the case of United States v. Nixon—a case that ironically is celebrated for limiting presidential power—as a foundation for the modern culture of excessive executive secrecy, and especially for the use of executive privilege to block legislative inquiries into executive-branch policy.

April 12, 2010

Published in the George Mason Law Review, Spring 2010 Issue.

The article addresses the critical, and much-discussed, issue of the growth of executive branch secrecy from a unique perspective. It identifies the case of United States v. Nixon—a case that ironically is celebrated for limiting presidential power—as a foundation for the modern culture of excessive executive secrecy, and especially for the use of executive privilege to block legislative inquiries into executive-branch policy. The article first sets forth the reasoning in the Nixon case, and traces the spread of excessive executive secrecy to the presumption, established by the Nixon Court, that a president’s communications with his advisors must remain confidential. This presumption is based on the premise that, without an assurance of confidentiality, presidential advisors will not offer candid advice. The article then turns a critical eye on Nixon’s reasoning, demonstrating that the basic premise on which the Nixon Court relied in recognizing the presumption of secrecy is fatally flawed. The presumption of secrecy itself is both wrong and dangerous. Wrong because it rests on a misunderstanding of the true relationship between secrecy and candid advice; and dangerous because it undermines the constitutional structure of checks and balances while ignoring the dangers that secrecy poses to democratic governance. The article then goes on to explain the proper view of executive secrecy from the perspective of the Constitution’s structure, and finally to offer some ideas regarding how each branch of government could act to combat the insidious effects of the Nixon presumption.

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