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Report

Executive Privilege: A Legislative Remedy

  • Emily Berman
Published: June 21, 2009

One of the most important tools in the government's secrecy repertoire is “executive privilege”—the President’s authority to claim the right to withhold information sought by Congress. Functioning properly, executive privilege creates a tightly drawn zone of confidentiality around the President to ensure that advisors provide him with candid advice while simultaneously allowing Congress access to the information it needs to engage in its core constitutional functions of policymaking and oversight.

But executive privilege can also serve to promote secrecy that is damaging to effective democratic government. The modern trend toward increased executive power and concomitant secrecy has thrown our constitutional balance of power out of kilter. The Framers crafted the Constitution’s checks and balances to limit each branch’s powers, to act as “a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other,” and to prevent “tyrannical” policies. The constitutional health of our democracy depends on transparency. When secrecy thwarts the efforts of Congress and the people to obtain information, it undermines Congress’s core functions, its ability to enact legislation and exercise oversight. Congress cannot craft legislation absent information about the problems it aims to ameliorate; nor can it act to check the use of executive power absent knowledge of how that power is exercised.

Implementing the reforms of executive privilege recommended in this report would constitute an important step toward addressing the Executive’s existing culture of secrecy. Executive privilege is one area where the recent expansion of secrecy can—and should—be rolled back to restore our constitutional balance and to prevent the harms that can result when that balance is misaligned.

With fuller and more accurate information about executive branch policies and practices, Congress can again execute its constitutional obligations effectively to ensure that policies are implemented as intended by elected officials; to detect and deter violations of law, regulation, and policy as well as waste and inefficiency; and to hold officials accountable for the actions they take in carrying out the people’s business.

The result will be a safer and stronger democracy for us all.