January 14, 2015

Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution

by Heidi Kitrosser, Professor of Law, University of Minnesota Law School

It is fairly well known by now that the Obama administration has prosecuted more persons for allegedly leaking classified information to journalists than all previous administrations combined.  Yet much less attention has been paid to the legal justifications offered for these prosecutions.

Like its predecessors, the Obama administration has consistently maintained in litigation that communications conveying classified information to journalists are “wholly unprotected by the First Amendment.”  This argument, which has been largely successful in the handful of prosecutions to reach courts over the years, rests on the notion that speech about government activities – speech that ordinarily would be deeply protected from content-based prosecution under the First Amendment – loses all protection once marked by the classification stamp.  That stamp is wielded by the millions of persons with some form of classification authority, authority that stems primarily from presidential executive order.

The notion that information about the federal government can be shielded from view by executive fiat ― and that the Constitution not only tolerates but demands this arrangement ― is hardly limited to the realm of national security leak prosecutions.  For example, the Obama administration, citing such constitutional reasoning, successfully objected to proposed legislation to broaden executive obligations to report certain activities to the congressional intelligence committees.  And the Obama and Bush administrations similarly deemed it questionable whether the state secrets privilege could constitutionally be limited by statute.

Outside of the national security context, presidents of both parties repeatedly have argued that the president has a constitutional prerogative to prevent executive branch employees from testifying to Congress without White House preclearance or from disseminating information to the public without such prior review.

In Reclaiming Accountability, I dissect the constitutional arguments as well as the political forces underlying these “presidentialist” legal positions.  Through examples spanning multiple factual contexts across parties and administrations, I demonstrate the deep influence that these positions have had ― and continue to have ― in all three branches of the federal government, in academia and in public discourse.  In particular, I demonstrate the role that these arguments play in facilitating and justifying excessive and often unchecked government secrecy.

I also argue that presidentialist arguments are incorrect as matters of constitutional text, structure and history.  I explain that the Constitution, far from supporting White House information control, provides myriad tools through which Congress, the courts and the people can fight unnecessary secrecy and reclaim the constitutional principle of government accountability.

Professor Peter L. Strauss of Columbia Law School writes:

Those of us concerned with the steady and apparently irresistible growth of presidential administration will find in Kitrosser’s brilliant book a thoughtful response to the overstatements of the constitutional arguments claiming to support it and a careful exposition of counterarguments that could help to curb it.  Rich with detail and examples, she shows how the arguments for presidential accountability, well grounded in our Constitution, support neither presidential supremacy nor the stronger forms of argument for a unitary executive but, rather, one in which executive secrecy and command are contained by law.

Professor David Cole of Georgetown University Law Center writes that Reclaiming Accountability “provides a nuanced and compelling diagnosis of the problem secrecy creates and concrete proposals for how to get accountability back.”  Professor Mary-Rose Papandrea of Boston College School of Law calls Reclaiming Accountability “an extremely powerful and persuasive response to the dominant scholarly narratives today regarding executive power.”  Professor Robert G. Vaughn of American University, Washington College of Law writes that “[e]very chapter rewards the reader by providing detailed information, nuanced arguments, and telling insights. Kitrosser speaks to researchers, legislators, transparency advocates, and anyone troubled by the risks to democratic governance posed by limited executive accountability.”  And Louis Fisher, Scholar in Residence at The Constitution Center and author of hundreds of articles and many books on the separation of powers, calls Reclaiming Accountability “[a]n important and thoughtful book.”