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Executive Privilege System Broken, Report Finds

Center proposes new legislation to resolve executive privilege disputes.

May 1, 2009

For Immediate Release: May 1, 2009

Contact: Jeanine Plant-Chirlin, 212–998–6289
Susan Lehman, 212–998–6318

Brennan Center Proposes New Legislation to Resolve Executive Privilege Disputes

Washington, D.C. – Today, the Brennan Center for Justice at NYU School of Law releases a new report, Executive Privilege: A Legislative Remedy, that offers a pathbreaking solution to a recurring and troubling clash between Congress and the Executive.

The system of executive privilege—long prone to abuse—broke down completely last year when Congress tried to subpoena information about the U.S. Attorney firings from White House aides Harriet Miers and Karl Rove. It became clear that Congress had little power to enforce even fully legitimate requests for testimony and documents in a matter vitally important to the nation. The Brennan Center proposes legislation to right the balance and codify, for the first time, a system of legislative privilege that protects the interest of the Presidency, the role of Congress, and the public’s urgent right to know.

“Over the last eight years, the doctrine of executive privilege has been used to thwart Congress’s ability to obtain critical information essential to carrying out its constitutional responsibilities of oversight and crafting legislation,” says Emily Berman, author of the report and Brennan Center attorney. “And Congress’s need to obtain sufficient, timely information from the executive branch has not diminished under the new administration.”

Now being reviewed by lawmakers, the Brennan Center’s proposed statute, “The Executive Privilege Codification Act” would establish standards governing the scope of executive privilege; strengthen the position of Congress relative to the Executive in executive privilege disputes; and secure the role of the federal courts as the final arbiter of such disputes.

To mark the release of our proposal, the Brennan Center is hosting an event today at the National Press Club in Washington, D.C. Joining the Brennan Center are Rep. Brad Miller (D-NC), former Oklahoma Rep. Mickey Edwards (former Chair of the House Republican Policy Committee) and Theodore Sorensen, former Special Counsel and Advisor to President John F. Kennedy.

For more information or to speak to Emily Berman about reining in executive overreach and strengthening democratic transparency, please contact Jeanine Plant-Chirlin at 212–998–6289 or at or Susan Lehman at 212–998–6318 or