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My name is Kate Shaw, and I am a Professor of Law at Cardozo Law School, where my work focuses, among other things, on executive power and questions of constitutionalism outside the courts. Before I began teaching, I worked as an Associate Counsel in the Obama White House Counsel’s Office, from 2009–2011.
I understand that the purpose of today’s hearing is to contextualize and assess the White House’s recent “protective” assertion of executive privilege over the entirety of the unredacted “Report on the Investigation into Russian Interference in the 2016 Presidential Election,” prepared by Special Counsel Robert S. Mueller, III, and underlying materials sought by this Committee, as well as the ongoing exchanges between this Committee and the executive branch regarding requests for documents and testimony from former White House Counsel Donald McGahn. Accordingly, my testimony will offer some brief background on executive privilege, both generally and in the context of Congress’s exercise of its oversight authority. It will then address more specifically the legal questions presented by recent events involving Committee requests for documents and testimony, subpoenas, and the formal assertion (and the more informal suggestions) of executive privilege.
In this statement, I will draw on legal authority from both courts and the political branches. As a general matter, the judicial authority in this area is sparse. That’s no accident: historically, the overwhelming majority of disputes between Congress and the President over access to information have been resolved internally, within the political branches. So, while I will address the handful of court cases that grapple with the contours of executive privilege, and the subset of those that arose in the context of congressional requests for information, I think equally important is the extrajudicial history—the principles and practices that for decades have guided the political branches in their approach to executive privilege.
In brief, the history I canvass here makes clear that blanket invocations of the privilege over wide swaths of executive-branch material are without substantial support in either case law or executive branch practice; moreover, they are unsupported by the principles that underlie the privilege. That 2 said, as to many of the individual documents at issue, there may be viable claims of privilege; if the executive-branch wishes to achieve a resolution that allows it to protect individual communications without risking erosion of the privilege in court, it would be well-advised to reconsider its approach in favor of one that better comports with long-standing practice
Shaw, Katherine A., "Executive Privilege and Congressional Oversight" (2019). Testimony. 6.