THE LIMITS OF EXECUTIVE PRIVILEGE
You Decide
Deciding which information a president can be compelled to
release to the public or to other branches of government and
what he can keep confi dential requires confronting fundamen-
tally political questions. There are no right answers, and the
limits of executive privilege remain unclear. On the one hand,
members of Congress need facts, predictions, and estimates
from the executive branch to make good public policy. More
important, members need to be able to weigh the pros and cons
of a range of policy alternatives.
Consider the controversy over the Obama administration’s
grant of federal loan guarantees to the Solyndra Corporation.a
These loan guarantees were supposed to allow Solyndra to
bring cheaper, more effi cient solar power panels to mar-
ket. However, the company’s efforts were unsuccessful and
it declared bankruptcy in August 2011, at a cost to taxpayers
exceeding $500 million. Republican critics in Congress charged
that a high-level Obama appointee in the Department of Energy
whose wife did legal work for Solyndra had pushed for the
loans and that the Obama administration had ignored warn-
ings because they wanted to claim credit for a “green energy”
program. There were several congressional investigations dur-
ing 2011 and 2012, and numerous congressional subpoenas for
documents—some of which were challenged by the Obama
administration on grounds of executive privilege.
The Solyndra case may seem like a situation in which exec-
utive privilege does not apply. Shouldn’t the American people
know the reasons the loan guarantees were made? If the
Energy Department staff did nothing wrong, why wouldn’t the
Obama administration comply with congressional subpoenas
and make their staff available for congressional hearings?
The problem is that testifying before Congress, or even
releasing documents in response to a congressional request,
is enormously time-consuming and can be surprisingly expen-
sive. Presidential appointees who have testifi ed before Con-
gress have faced personal legal bills of $100,000 or more. If
members of Congress could require information and testimony
of executive branch employees whenever they wanted, it would
be hard for the executive bureaucracy to get anything done—
and hard to convince anyone to work there.
Of course, there are two sides to this story. Republicans
opposed the loan guarantees on policy grounds, believing that
the free market rather than the government should decide
which new companies get funded. And of course, the investi-
gations did help to publicize the fact that the Obama admin-
istration’s decision to lend money to Solyndra was, at least in
retrospect, a mistake. But even leaving these concerns aside, it
is not surprising that the administration invoked executive priv-
ilege, as the costs of complying with the subpoenas in terms of
time, effort, and a loss of confi dentiality were substantial.
In sum, although being able to get information from a
president can help members of Congress make better policy
choices, there are situations in which confi dentiality helps the
president and his staff make good choices as well. However,
executive privilege can also be used to hide crimes or ques-
tionable political tactics, or to prevent members of Congress
from embarrassing the president by publicizing his mistakes or
private comments. Should presidents have an executive privi-
lege? What limits should apply to congressional requests for
information and testimony? You decide.Critical Thinking Questions
- Decisions about executive privilege involve a
tradeoff between informing the public and mem-
bers of Congress about executive branch delib-
erations, and facilitating the free exchange of
information between a president and his or her
aides. What criteria or decision rules should
determine whether claims of executive privilege
are upheld or dismissed? - In the case of the Solyndra program, would you
allow President Obama to claim executive privi-
lege or force him to release all of the information
requested by members of Congress? Would your
answer be diff erent if Obama were a Republican?
THE PRESIDENT’S JOB DESCRIPTION| 307The Obama administration refused to have some energy depart-
ment staff ers testify before Congress about loans to the Solyndra
Corporation, claiming executive privilege.