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Article Title

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

Authors

Anthony W. Wassef, Cornell Law School, J.D. 2020

Keywords

Crime-fraud exception, Executive privilege, Separation of powers

Abstract

A crime-fraud exception to assertions of executive privilege in response to congressional subpoenas would help level the playing field between the two branches in those moments when Congress is most needed to serve as a check and balance on the executive branch. A crime-fraud exception would signal to executive branch officials that executive privilege will not conceal their malfeasance; would counteract hyperpartisanship as a force that insulates executive branch officials from the consequences of their actions; and would rein in the expansive reach of protective assertions of executive privilege. For years, Congress has surrendered power to the executive branch. A crime-fraud exception to executive privilege would help it take some of that power back.

Recommended Citation

Anthony W. Wassef, 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, 105 Cornell L. Rev. 1261 (2020)
Available at: https://scholarship.law.cornell.edu/clr/vol105/iss4/7