The 2024 Executive Power Survey – Executive Secrecy

I have long believed in the importance of Congress’s oversight power in informing legislation, and also in holding the executive branch accountable. Yet, I also recognize the importance of the longstanding executive branch interest in maintaining the confidentiality of certain documents that do not directly involve the White House, including documents generated in the course of the deliberative process.

In the vast majority of cases, any tension between those two interests can be resolved through the long-recognized accommodations process, and I have directed members of my administration to aggressively engage in that process in order to reach agreement with Congress regarding its legitimate requests whenever possible.

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Assertion of executive privilege is qualified, not absolute. The “necessary and proper” clause of the U.S. Constitution, Article I, Section 8, reified in McCulloch v. Maryland 17 U.S. (4 Wheat.) 316 (1819) extended Congress’s enumerated powers into the realm of implied powers. See also Watkins v. United States and Barenblatt v. United States with respect to congressional investigative powers. However, Congress does not have the power to vitiate the First, Fourth, Fifth Amendments.

Since I am in favor of bringing more transparency to government, I would do my best to cooperate with all reasonable requests by Congress.

Unlike the express “speech or debate” clause privileging congressional deliberations, executive privilege is a constitutionally atextual and substantially invented concept vis-à-vis Congress. The Supreme Court has never sustained the privilege regarding congressional oversight of the executive, and the House Judiciary Committee voted for an article of impeachment against President Nixon for resisting a congressional subpoena.

Congressional oversight of the executive branch, including the investigation of crime or other wrongdoing, has been legitimate at least for a century, beginning with the Teapot Dome scandal and the Supreme Court’s decisions in Sinclair v. United States and McGrain v. Daugherty.

Executive privilege is a crucial tool to protect sensitive communications within the executive branch, especially those involving the president and close advisers. I would consult with my White House counsel and Department of Justice to determine further application of executive privilege.

Congress has legitimate constitutional authority to issue subpoenas and conduct oversight investigations, but there must be common sense and constitutional limits. Just as the president should not interfere with specific ongoing criminal cases being investigated by the F.B.I., Congress should be limited to policy oversight and not influencing the outcome of a particular case.

While Congress does have legitimate legal authority to issue subpoenas compelling disclosure of information, it has often abused this power. George Washington appropriately invoked executive privilege to protect against disclosure of the executive’s internal deliberations on the Jay Treaty, including communications that did not directly involve the president, and courts have recognized that executive privilege serves important separation-of-powers interests.

In precedent-setting litigation, I successfully invoked the “speech or debate” clause, a parallel authority that applied to Congress, against the Biden Justice Department to protect my internal deliberations with my staff as president of the Senate.

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I will uphold the scope and substance of executive privilege claimed by my predecessors. While the subpoena power is an important tool for Congress, it must be balanced against the constitutional prerogatives of the president in order to maintain the separation of powers.