•  
  •  
 
Indiana Law Journal

Document Type

Article

Publication Date

2025

Publication Citation

100 Indiana Law Journal 923

Abstract

There are few Supreme Court cases that enjoy as much widespread support as the unanimous decision in United States v. Nixon. The recent pitched battles between Congress and the executive branch have made apparent the vast disagreement between the two branches over access to information. But that disagreement does not extend to Nixon, the unquestioned jurisprudential foundation for the doctrine of executive privilege. Closer inspection shows, however, that this foundation is not a stable one, but one constructed from unnecessary, ill-considered dicta.

As this Article demonstrates, Nixon conflated the constitutional question about one branch’s power vis-à-vis another branch with an issue that was neither briefed nor contested by the parties—whether the information at issue was protected by a constitutional evidentiary privilege. The executive branch has weaponized that conflation in the context of congressional oversight and created prophylactic constitutional doctrines to thwart inquiry into congressional need. The conflation at the heart of Nixon has also created a mismatch in scholarship, such that the recent scholarship on secrecy, common law privileges, and FOIA practices is almost entirely divorced from work on congressional oversight and executive privilege. That partition exists because of Nixon and despite the fact that the same types of information and accountability interests are at stake.

This Article attempts to sever the entrenched conflation at the heart of Nixon and current oversight disputes and reestablish—in the context of congressional oversight—the distinction between common law executive privileges and the respective constitutional authority of the two branches. That conflation is the foremost obstacle to resolution of the repeated, intractable interbranch disputes over information. But such resolution is only possible if both Congress and the executive branch are willing to forgo some of their entrenched categorical positions, including the congressional refusal to recognize the legitimacy of common law privileges. In addition, severing that conflation will restore to conversations about congressional oversight the policy and accountability considerations that animate these common law privileges and also create a new common law paradigm of congressional oversight that provides for straightforward doctrinal and theoretical resolution of intractable constitutional questions that have recently confounded courts and scholars, such as a former president’s authority to assert executive privilege or the ability of the government to protect sensitive information held by third parties.

Download

Share

COinS