Executive Privilege: A Legislative Remedy

June 21, 2009

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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.

Privilege, Secrecy, and Checks & Balances

Supreme Court precedent teaches that the key question in disputes over claims of executive privilege—both as a matter of law and as a matter of public policy—is whether Congress’s need for disclosure outweighs the Executive’s interest in confidentiality. Resolving executive privilege disputes demands a mechanism for striking the correct balance between these competing interests. The mechanism commonly used today—negotiation between the branches—is not always effective in reaching a resolution that accounts for both Congress and the President’s interests. Instead, sometimes a self-interested Executive is able to determine unilaterally whether the information will be disclosed. The predictable result is that information too frequently remains secret.

The number of executive privilege assertions presidents actually make is not large—no more than a handful in any post-Nixon administration—but the number of privilege assertions does not correlate to the size of the problem. In fact, the number of explicit “executive privilege” disputes is dwarfed by the number of information disputes between Congress and the Executive that, though they do not always involve an explicit presidential assertion of executive privilege, still force Congress to decide whether—and how aggressively—to pursue information with an awareness that, if Congress pushes too hard, the President may assert executive privilege. Knowing that every information request might be met with executive resistance that it has no effective means of overcoming, Congress is likely deterred from requesting more information than it currently does.

Thus, counting the number of times executive privilege is invoked does not tell the full story. Instead, the most troubling executive privilege disputes arise out of a system that contains design flaws that not only allow an intransigent Executive to defy the needs of Congress with relative impunity, but also suggest that even when a compromise is reached, it may not be the compromise that best serves the public interest. These design flaws are:

  • First, no clear guidelines govern executive privilege.
  • Second, the Executive's monopoly on information and the ineffectiveness of Congress's information-forcing tools lead to a system biased in favor of the Executive.
  • Third, the branches' differing understandings of when the privilege applies exacerbates the likelihood of conflict.
  • Fourth, the absence of clear, enforceable guidelines encourages the Executive’s tendency to expand the zone of secrecy.

A Remedy

This report proposes a remedy that will better resolve executive privilege disputes, help restore our checks and balances, and strengthen our democracy. A proposed statute, the “Executive Privilege Codification Act,” offers a comprehensive framework that responds to the problems with executive privilege. There are three fundamental—and novel—elements of the Executive Privilege Codification Act:

  • First, it establishes standards regarding the use of executive privilege. The Act specifies when the President may invoke the privilege and how Congress may overcome it.
  • Second, the Act reinvigorates the role of Congress by requiring disclosure when Congress can show a "specific need" (or, in the case of law enforcement information, a legitimate purpose) for information in order to carry out its constitutional duties, including legislating and conducting oversight.
  • Third, the Act expressly authorizes Congress to submit executive privilege disputes to the federal courts, when inter-branch negotiations have proved unsuccessful and a majority of the House or the Senate votes to authorize itself, or one of its committees or subcommittees, to file a specific suit.

Together, these elements of the Act combine to reduce uncertainty, balance the needs of Congress and the Executive, and assure prompt and accurate final resolution of information disputes.

Executive privilege periodically flares up on the political radar when high-profile disputes arise. While controversy lingers, it is difficult to see past the partisan positions of that moment. But as controversy fades, too often so does interest in seeking long-term solutions. And the last several years have shown that grave problems can arise in our federal government when official secrecy, and the reliance of the executive branch on its privileges, is permitted to stymie or distort democratic processes. Past generations have made the mistake of neglecting executive privilege law, allowing energy for needed reform to wane once particular controversies have passed. Today we have an opportunity to do better. In order to guard against the perils of official secrecy, we can install an enduring mechanism to balance the legitimate interests of the political branches, restore our constitutional norms, and strengthen the core value of democratic transparency.

About the Liberty & National Security Project

The Brennan Center initiated its Liberty and National Security Project as part of its Justice Program to foster better public understanding of the importance of accountability, transparency, and checks and balances in the formulation and implementation of national security policy. We have since been at the forefront of advocating for sound, rights-respecting policy based on broad public education, legislative advocacy, litigation, and scholarly activity.

About the Author

Emily Berman is Counsel and Katz Fellow in the Liberty and National Security Project at the Brennan Center for Justice. She works through litigation, advocacy, and scholarship to promote rights-protecting and effective oversight of United States national security policy. Before joining the Brennan Center, Ms. Berman was at New York University School of Law pursuing her LL.M. in International Law. She clerked for Judge John M. Walker of the Second Circuit Court of Appeals and graduated magna cum laude from New York University School of Law (2005).