What Kind of Animal is Executive Privilege?
Various well-reasoned comments on my post yesterday challenged my suggestion that the courts might defer to the judgment of Congress that executive privilege should yield in any particular case on the ground that Congress, as a politically accountable body, may be better situated to balance the need to override the privilege and the executive's need for the privilege. If executive privilege is rooted in separation of powers, the objection goes, then deferring to Congress in such matters means that the fox guards the chicken coop. At the very least, the objection goes, there is no reason to prefer the judgment by Congress that the privilege should be overridden to the judgment of the President---who is also politically accountable---that it should not be overridden. I have two thoughts in response. First, I did not mean to say (nor, on re-reading what I wrote, did I actually say) that this alternative, defer-to-Congress, approach is actually right. I only raised it as a possibi...