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70 Duke L.J. 1 (2020-2021)

handle is hein.journals/duklr70 and id is 1 raw text is: Duke Law Journal VOLUME 70 OCTOBER 2020 NUMBER 1 THE EXECUTIVE'S PRIVILEGE JONATHAN DAVID SHAUBt ABSTRACT Both the executive branch and Congress claim the final word in oversight disputes. Congress asserts its subpoenas are legally binding. The executive branch claims the final authority to assert executive privilege and, accordingly, to refuse to comply with a subpoena without consequence. These divergent views stem in large part from the relative absence of any judicial precedent, including not a single Supreme Court decision on the privilege in the context of congressional oversight. In that vacuum-unconstrained by precedent-the executive branch has developed a comprehensive theory of executive privilege to support and implement prophylactic doctrines that render Congress largely powerless in oversight disputes. For the first time, this Article sets out the full extent of the executive branch's doctrine, the various pieces of which have been expressed in OLC opinions, letters to Congress, and court filings. Existing Copyright © 2020 Jonathan David Shaub. t Assistant Professor, University of Kentucky J. David Rosenberg College of Law; J.D., Northwestern Pritzker School of Law; B.A., Vanderbilt University. This article concerns congressional oversight disputes on which I worked as an Attorney-Adviser in the Office of Legal Counsel at the U.S. Department of Justice, but none of the information contained in this article is confidential or subject to any claim of privilege. This paper benefitted mightily from numerous conversations with and comments from my OLC colleagues, particularly Amin Aminfar, John Bies, Martine Cicconi, Kirti Datla, Adele El-Khouri, Caroline Flynn, Troy McKenzie, Annie Owens, Matt Roberts, and Shalev Roisman. I also owe a debt of gratitude to Paul Colborn for introducing me to executive privilege and for his insight into the development of executive branch precedent in this area. The country is a better place because of longtime career public servants such as Paul. I owe additional thanks to the Lawfare team-Benjamin Wittes, Quinta Jurecic, and Margaret Taylor, in particular-for encouraging me to write and think through these issues, and to Marty Lederman for his enthusiastic support and insightful comments. The article benefitted additionally from comments by Mark J. Rozell and Mitchel A. Sollenberger. Finally, I can't thank the team at the Duke Law Journal enough for their insightful comments and edits.

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