Executive privilege has made a lot of headlines recently. The White House claims that Harriet Myers, as a former advisor to the president, “has absolute immunity from compelled congressional testimony as to matters occurring while she was a senior adviser to the president”(link). Congress, of course, objects to this. I think that broad executive privilege makes political outcomes worse, and if a new constitution were being drafted, broad executive privilege should be eliminated (though it’s not mentioned in the American Constitution now).
The most popular reasoning for executive privilege is that advice given to the president must be immune from legislative and judicial probing for the president to receive candid advice. White House spokesman Tony Snow affirms that this is the White House’s reasoning (link):
There does have to be, for politicians who have very difficult jobs, the ability to get honest counsel from people who are working for them. That is all this is about. This is not about trying to throw a big smoke cloud over how the government works.
The argument seems sound until you try to come up with some examples for when this power might improve the results of inter-branch conflicts. Should the executive branch be immune from having to testify before congress in the current state attorney firing scandal and other similar scandals? Partisan firings are certainly not good for the rule of law. Reviewing the historical uses of executive privilege listed on the wikipedia entry provides no compelling examples either. I cannot think of any scenario where unchecked executive privilege would improve the political outcome. Government secrets improve governance only when technical secrets are necessary to maintain national security.
Now, Congress could conceivably abuse its subpoena power by subpoenaing everything a president did, but any situation where the legislature is so at odds with the executive that it seeks make the executive’s job as difficult as possible would constitute a breakdown in the political system that executive privilege could not solve. Consider that the executive can abuse its veto power in a similar way but chooses not to.
Occasionally search warrants and other legislative or judicial interference might endanger national security, and in such circumstances it is reasonable to limit probes on the executive branch, but all such executive privilege claims should be approved by an independent judge with appropriate security clearance.
This is an application of the constitutional rule I have proposed before that the government should not be allowed to keep any non-technical secrets, and technical secrets should only be allowed when they are necessary for national security.