In response to a private lawsuit seeking relief from the government’s expropriation of all the future profits of Fannie Mae and Freddie Mac, the executive branch has invoked “executive privilege” to shield thousands of documents from disclosure. However, when private parties allege government wrongdoing, the government’s interest in securing confidential advice should yield to the plaintiffs’ need to prove their case. Private parties, in this case shareholders of Fannie and Freddie, have billions of dollars at stake, while the public has inestimable interests in open government, the rule of law, and accountability. Given the circumstances, the court reviewing the claim of executive privilege should rebuff the executive’s attempt to cast a shroud of secrecy over its expropriation. While the executive’s generalized interest in confidentiality may prevail in other contexts, its relatively weak interest in this case should not trump the constitutional rights of plaintiffs seeking just compensation for a taking of their property.

Saikrishna Prakash, The Government’s Seizure of Private Property Behind a Veil of Secrecy, (May 16, 2016).
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