Congressional Access to Information: Using Legislative Will and Leverage

Presidents and their advisers cite various legal principles when they withhold documents from Congress and refuse to allow executive officials to testify before congressional committees. Congress can marshal its own impressive list of legal citations to defend legislative access to information, even when presidents assert executive privilege. These legal and constitutional principles, finely-honed as they might be, are often overridden by the politics of the moment and practical considerations. This Essay highlights the political settlements that decide most information disputes. Courts play a role, but it is a mistake to believe that handy cites from judicial opinions will win the day. Efforts to resolve interbranch disputes on purely legal grounds may have to give ground in the face of superior political muscle by a Congress determined to exercise the many coercive tools available to it. By the same token, a Congress that is internally divided or uncertain about its in-