Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials
![handle is hein.journals/capulr35 and id is 993 raw text is: STIFLING GUBERNATORIAL SECRECY: APPLICATION
OF EXECUTIVE PRIVILEGE TO STATE EXECUTIVE
OFFICIALS
MATTHEW W. WARNOCK
INTRODUCTION
Since the beginnings of our nation, opined the Circuit Court of
Appeals for the District of Columbia, executive officials have claimed a
variety of privileges to resist disclosure of information the confidentiality
of which they felt was crucial to fulfillment of the unique role and
responsibilities of the executive branch of our government.' The most
common of these privileges is known as executive privilege.
The concept of executive privilege was created to shield confidential,
executive branch communications from disclosure. It is based upon the
principle that those who expect public dissemination of their remarks may
well temper candor with a concern for appearances and for their own
interests to the injury of the executive branch.2 On the other hand,
executive privilege runs contrary to the democratic principles of open
government and the free flow of information. As James Madison aptly
noted, '[a] popular Government, without popular information, or the
means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps
both. Knowledge will forever govern ignorance: And a people who mean
to be their own Governors, must arm themselves with the power which
knowledge gives.
Attempting to balance these competing interests, the United States
Supreme Court recognized a qualified version of executive privilege in
United States v. Nixon.4 Concluding that executive privilege is
fundamental to the operation of Government and inextricably rooted in
the separation of powers,5 the Court acknowledged the need to protect
Copyright © 2007, Matthew W. Warnock
. Matt Warnock, J.D. Capital University Law School, 2007. Associate, Bricker &
Eckler, LLP. I would like to thank Fred Gittes for giving me the inspiration for this Article
and Professor Dan Kobil for his help in finishing it.
1 In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997).
2 United States v. Nixon, 418 U.S. 683, 705 (1974).
3 In re Sealed Case, 121 F.3d at 749 (quoting Letter from James Madison to W.T. Berry
(Aug. 4, 1822), in 9 WRITINGS OF JAMES MADISON 103 (Gaillord Hunt ed., 1910)).
4418 U.S. at 705-13.
'Id. at 708.](ViewImageLocal?handle=hein.journals/capulr35&div=35&collection=journals&method=preview&ext=.png&size=3)
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Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials
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