Associate Professor of Government Gbemende E. Johnson published an article in the peer-reviewed Law and Society Review. “Adjudicating Executive Privilege” explores federal courts’ influence on executive branch transparency by analyzing litigation involving challenges to a federal agency’s decision to withhold information under a claim of deliberative process privilege.
The deliberative process privilege, a common form of executive privilege, allows an agency to withhold information that may show the process by which it reached a particular decision or crafted a specific policy. The privilege typically allows the government to withhold testimony or documents that reflect an agency’s pre-decisional advisory opinions, recommendations, and deliberations.
Litigants can challenge an agency withholding of information in federal court. Using an original dataset of approximately 200 court cases, Johnson finds that judges are more likely to uphold privilege claims raised by independent agencies and agencies that are ideologically congruent with the reviewing judge.