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Print Vol. 105, Issue 4


Executive Privilege—With A Catch: How a Crime-Fraud Exception to Executive Privilege Would Facilitate Congressional Oversight of Executive Branch Malfeasance in Accordance with the Constitution’s Separation of Powers

Anthony W. Wassef

15 May 2020

This Note argues that a crime-fraud exception in the context of congressional subpoenas would perform three critical functions in restoring Congress’s power vis-à-vis the executive branch. First, it would send a crucial prophylactic signal to the president and executive branch officials that would deter unlawful behavior on their part. Second, it would provide an antidote to the detrimental effects that hyperpartisanship has wrought on Congress’s ability to investigate the executive branch. Finally, it would serve as a check and balance on the steady expansion of the executive branch’s power by preserving Congress’s investigatory prerogatives in the face of the newest instrument of executive overreach: the protective assertion of executive privilege. On balance, a crime-fraud exception to executive privilege would enhance rather than diminish the ability of Congress to conduct oversight when Congressional supervision is needed most while according respect to the executive branch’s need for confidentiality in lawful circumstances. 

Part I of this Note will provide a brief history of executive privilege via an analysis of the key case law underlying the doctrine and discuss the core tenets of the privilege that dictate its use. Part II will describe the origins of Congress’s power to investigate and the current rules for overcoming executive privilege in that context. Part III will discuss how, in playing the three critical functions mentioned above, a crime-fraud exception would balance Congress’s interest in performing its oversight duties with the executive branch’s interest in confidentiality while simultaneously reducing instances of criminal or fraudulent conduct by the executive branch. 

To read more, click here: Executive Privilege—With A Catch.