Suboptimal Executive Privilege

ABSTRACT Executive privilege disputes between the political branches shape the boundaries of presidential secrecy and congressional authority. Those disputes often give rise to calls for political rather than judicial resolution. The existing academic literature and judicial doctrine in this area offer limited theoretical accounts of when courts should abstain from or resolve the executive privilege disputes presented to them by the political branches. This Article provides an analytical framework for evaluating the outcomes provided by judicial and political resolution of executive privilege disputes and then explores how those evaluations inform judicial decisions to abstain from or resolve executive privilege disputes. Political resolution of these disputes produces constitutionally acceptable, but suboptimal, outcomes. Courts can provide preferable outcomes in some cases, but judicial involvement in executive privilege disputes between the political branches also can threaten the legitimacy of courts. This raises the constitutional stakes of executive privilege disputes and argues for abstention in many cases. Courts conceivably could address those legitimacy concerns by sitting as courts of constitutional equity or doctrinalizing their discretion to entertain executive privilege disputes between the political branches. Such changes appear unwise and unlikely. Courts can change their doctrine at the margins to encourage more productive negotiations between the political branches and thus improve upon suboptimal outcomes. However, a default judicial abstention from executive privilege disputes between the political branches, governed by a nondoctrinalized prudential discretion, appears appropriate and likely to endure. I. INTRODUCTION 1128 II. THE UNDERTHEORIZED RESOLUTION OF EXECUTIVE PRIVILEGE DISPUTES 1132 A. Historical Assertions of Executive Privilege 1133 B. The Undertheorized Process of Resolving Executive Privilege Disputes 1137 III. NEGOTIATED RESOLUTION OF EXECUTIVE PRIVILEGE DISPUTES BETWEEN THE POLITICAL BRANCHES 1141 A. Constitutional Values and Executive Privilege Disputes ..1142 B. The Unlikelihood of Constitutionally Optimal Outcomes 1145 C. The Likelihood of Constitutionally Acceptable Outcomes 1149 IV. JUDICIAL RESOLUTION OF EXECUTIVE PRIVILEGE DISPUTES BETWEEN THE POLITICAL BRANCHES 1154 A. Judicial Legitimacy and Executive Privilege Disputes .. 1155 1. Procedural exceptionalism 1156 2. Substantive concerns 1158 3. Implications of legitimacy concerns 1160 B. The Possible (but Unlikely) Expansion of the Judicial Role 1166 1. Courts of Constitutional Equity 1167 2. Doctrinalization of judicial discretion to entertain executive privilege disputes 1168 C. Remaining Opportunities for the Judiciary 1170 IV. CONCLUSION 1173 I. INTRODUCTION Few separation of powers issues have been as consistently contentious over the last fifty years as the existence, scope, and proper use of executive privilege: the power of a President to withhold certain types of information, even from Congress. The debate between the need for secrecy and candor within the executive branch and the need for congressional oversight has simmered - and occasionally raged - since the beginning of the republic, even if not framed in terms of "executive privilege. …