Congressional Control of Agency Privilege

This note seeks to provide an introductory and largely historical analysis of “agency privilege:” the refusal of federal executive officials to furnish information and documents to congressional bodies absent the invocation of a claim of privilege by the President. After a brief survey of the origins of agency privilege in part I, the history and nature of the competing interests of congressional investigations and autonomy of executive departments and agencies will be discussed in part II. Part III explores the constitutional basis of the claim and analyzes other justifications proffered in specific circumstances. Part IV weighs the merits of various proposals to establish a proper role for agency privilege.