Writing in Slate, Bruce Fein takes issue with the major premise underlying executive privilege:
"The president's claim of privilege pivots on a false assumption wrongly endorsed by the Supreme Court in Nixon v. United States: namely, that the president will not receive candid and unfettered advice from subordinates absent a guarantee that their communications will remain confidential. What nonsense. I have worked in and out of government for 38 years. I have never heard any high or low executive-branch official so much as insinuate that presidential advice had been or might be skewed or withheld if confidentiality were not guaranteed. The gravity of advising the president universally overcomes anxieties over possible embarrassment through subsequent publicity. Moreover, every presidential adviser knows that confidentiality is never ironclad. Presidents routinely waive executive privilege in jockeying with Congress; confidentiality is always subservient to a criminal investigation or prosecution under the Nixon precedent; and leaks to the media of confidential presidential memos or conversations overflow like the Nile. Indeed, President Bush has himself waived the privilege repeatedly in the ongoing U.S. attorneys investigations by the two committees.
Executive privilege is a concoction, then, to protect secrecy for the sake of secret government, while transparency is the rule of enlightened democracies to insure political accountability and to deter folly or wrongdoing."
