William & Mary Bill of Rights Journal
Abstract
Exploring the role of the judicial branch of the federal government in Clinton-era executive privilege claims, Neil Kinkopf suggests that courts have misunderstood executive privilege. Professor Kinkopf points out that federal courts have given different treatment to executive privilege claims asserted in judicial and congressional arenas, protecting the Judiciary from encroachment by the executive branch, while avoiding becoming involved in controversies among the political branches. He argues that the judicial confusion about executive privilege stems from the fact that courts have interpreted cases such as Clinton v. Jones to be about the separation of powers between the executive and judicial branches, rather than about the interpretation of federal jurisdictional statutes. Professor Kinkopf proposes judicial and legislative responses that could provide remedies for the problem of judicial misunderstanding of executive privilege in the future.