Executive Privilege As Constitutional Common Law: Establishing Ground Rules in Political-Branch Information Disputes

Abstract

One of the most effective tools that Congress can use to monitor the conduct of executive-branch officials is its subpoena power. If a government official refuses to comply with a congressional subpoena, Congress can hold her in contempt, and if the official still refuses, Congress can take her to court. Lawsuits between Congress and government officials over congressional subpoenas—what I call “political-branch information disputes”—are notoriously difficult for courts to resolve, however. Frequently, they devolve into “patently conflicting assertions of absolute authority” from both branches of government, United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976), and courts have not yet developed a workable analytical framework for resolving these disputes.

This Note addresses this problem by establishing a clearer doctrinal foundation for the executive privilege. Though commentators and lower courts have generally assumed that the executive privilege is a doctrine of constitutional law, this Note argues that it actually represents a cluster of subconstitutional evidentiary privileges rooted in federal common law—that is, “constitutional common law.” Like traditional common-law privileges, this Note contends, courts can incrementally create, modify, and abrogate “executive privileges” in response to new factual situations. And like other federal common-law doctrines, executive privileges are subject to legislative revision.

Finally, this Note demonstrates the utility of its framework by applying it to House Committee on Oversight and Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013), a political-branch information dispute stemming from Congress’s investigation of “Operation Fast and Furious,” a botched sting operation in which the Obama Justice Department mistakenly distributed more than a thousand guns to drug dealers south of the U.S.–Mexico border. Freed from the deadlock of conflicting assertions of constitutional supremacy, this Note proposes that the executive privilege be understood to encompass a “congressional response privilege,” which, like the attorney work-product privilege applicable in other types of litigation, would prevent Congress from subpoenaing documents created in preparation for an official’s response to a prior congressional subpoena. As this case demonstrates, under this Note's proposed approach, new executive privileges can be recognized in the same way that courts recognize other litigation privileges: through thoughtful, incremental, common-law change.

Keywords: executive privilege, constitutional common law