A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas
![handle is hein.journals/hjl21 and id is 151 raw text is: STATUTE
A LEGISLATIVE PROPOSAL FOR
RESOLVING EXECUTIVE PRIVILEGE
DISPUTES PRECIPITATED BY
CONGRESSIONAL SUBPOENAS
JAMES HAMILTON*
JOHN C. GRABOW**
Disputes betveen the President and Congress regarding the executive
branch's obligation to respond to Congressional demands for information
have appeared with disquieting frequency in recent years. These disputes
involve what has been called the clash of absolutes, generating contro-
versy and making political compromise difficult. Congress is forced to rely
on its criminal contempt powers as the primary means to obtain compli-
ance with subpoenas it has issued to employees and officials of the ex-
ecutive branch. These powers, however, are ill-suited to ensure adherence
to such subpoenas.
In this Article, Mr. Hamilton and Mr. Grabow identify the shortfalls of
the powers currently available to Congress to enforce its subpoenas and
propose a bill that would provide a civil remedy for the enforcement of
Congressional subpoenas issued to executive branch officials. The authors
trace the history of similar proposals made in the past and examine
alternatives to the proposed bill. Mr. Hamilton and Mr. Grabow conclude
by arguing that there are no constitutional or other barriers to a civil
action brought under the proposed bill and that it is nonv time for the bill's
enactment.
From the administration of George Washington' to that of
Ronald Reagan,2 conflicts have arisen between the President
and Congress over the executive branch's obligation to respond
to congressional demands for information. To justify witholding
information, the executive branch often has couched its claims
of executive privilege in the broadest of terms. Thus, lawyers
for President Nixon argued in 1973 that [s]uch a privilege,
inherent in the Constitutional grant of executive power, is a
* Member, Ginsburg, Feldman and Bress, Washington, D.C. A.B., Davison College,
1960; LL.B., Yale University, 1963; LL.M., University of London, 1966.
** Associate, Ginsburg, Feldman and Bress, Washington, D.C. B.A., University of
Michigan, 1978; J.D., University of Michigan, 1981.
'In 1796 George Washington refused to deliver certain documents concerning the
negotiation of the Jay Treaty to the House of Representatives. Washington did, however,
supply the information to the Senate, observing that the Senate, not the House, has a
constitutional role in the negotiation of treaties. See Messages and Papers of the Pres-
idents 194-96 (J. Richardson ed. 1896). See also Wolkinson, Demands of Congressional
Committees for Executive Papers, 10 FED. B.J. 103, 107-09 (1949).
2 See infra notes 6-11 and accompanying text.](ViewImageLocal?handle=hein.journals/hjl21&div=9&collection=&method=preview&ext=.png&size=3)
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A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas
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