Executive Privilege: Presidential Power to Withhold Information from Congress

The most extensive and influential scholarly examination of the issue of executive privilege is Raoul Berger's Executive Privilege: A Constitutional Myth. Berger holds that executive privilege is in fact constitutionally improper. This chapter begins with an analysis of specific constitutional language. It reviews Berger's analysis of the scope of the president's powers as director of foreign affairs, commander-in-chief, and chief executive. The chapter examines the proper limits to the exercise of executive privilege in a government of separate but co-equal institutions. It argues that executive privilege, far from being a constitutional myth, is when properly understood a critical element in maintaining the intended constitutional independence of the president in a republican form of government where the legislature does not necessarily predominate. Certainly an analysis of the constitutional propriety of executive privilege must begin with a consideration of the text of the Constitution itself. Berger maintains, nonetheless, that the Constitution is not simply silent on the issue of executive privilege.