By Philip Drucker
Today, I start with a simple question. Q: Does the term (or even the concept) “Executive Privilege” appear in the US Constitution? A: No. So, two slightly more difficult questions come to mind, what is it? And, where does it come from?
Executive Privilege is not a new concept. No less than heavyweight George Mason gave what is still the best short description;
"the right of the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public."
Despite its lack of contextual presence, every president is and was aware of the concept and generally have not been shy about employing it often in the context of national security and foreign affairs.
In 1794, George Washington asserted the power of the executive to withhold certain documents pertaining to the Jay Treaty from the prying eyes of congressional interference. The Jay Treaty was an agreement between the newly minted United States of America and its former foe, but now supposed ally, Great Britain. It seems American independence had left a bad taste and a bit of a hangover on our previous drunk with power mad monarch King George. The Treaty promised better US/UK peacetime relations, but as negotiations continued, details leaked out to the general population that proved to be unpopular with the American people.
When the House of Representatives demanded documents and records related to the negotiation process, Washington refused to deliver all the requested materials. In doing so, George either wittingly, or unwittingly displayed the first act of presidential defiance upending, or at least defining, the separation of powers leading to what would eventually be known as Executive Privilege.
By a vote of 20-10, the Senate did ratify the Treaty and America did help to avoid another war with England. Interestingly, it was this rift between the various members
of government that led to the creation of the Federalists and Democratic-Republicans, America’s first two political parties.
Since Washington’s initial use, several presidents, most notably (if he was notable for anything) Grover Cleveland made the Executive Privilege Hall of Fame when he refused to hand over to an inquisitive and feisty Congress executive department files related to questionable presidential appointments. Despite the massive power grab and re-balancing of powers that occurred during the Cleveland administration, the presidential power to withhold still did not have a formal name.
It wasn’t until the 1950’s when everyone liked Ike and Ike liked keeping certain information secret from the public, all in their best interest of course. Dwight D. Eisenhower is on record as the first president to use the term “Executive Privilege” to describe this previously eponymous presidential power.
Ike was apparently a big fan of anonymous input from colleagues, staff and scholars alike famously saying;
“Any man who testifies as to the advice he gave me won’t be working for me that night.”
Fair enough. For it wasn’t until Richard M. Nixon made Executive Privilege infamy that the now generally excepted concept received any serious re-examination and/or criticism, much less Congressional limitations. During his administration leading up to his resignation, Tricky Dick had a problem. He was a crook and didn’t want anyone to know. So, he hid everything, and I mean everything he could behind the façade of Executive Privilege.
Essentially, Nixon claimed the scope of Executive Privilege as since I am the president, anything and everything I touch, hear, see or smell, experience as an existential in or out of body experience, is subject to withholding, because I said so. And if I didn’t say so, it is anyway, because I’m the president. And I said so. The whole thing fell apart when Nixon refused to hand over the “secret” White House tapes despite a special counsel subpoena demanding their production.
Eventually the case went to court and to this day U.S. v. Nixon (1974) is the only SCOTUS case specifically addressing the scope of Executive Privilege. The case is mostly noteworthy as the official recognition of Executive Privilege” as an actual Court approved doctrine of constitutional law. Other than that, from Nixon, I can safely tell you some issues of “military, diplomatic, or sensitive national security secrets” are within the privilege.
Anything else, particularly about the issue of Congressional attainability as part of an ongoing impeachment Inquiry, well, reel to reel secret recordings of the president and his for the most part unaware they are being recorded staff, aides and advisors are in. Cassettes, CDs, DVDs, probably. Streaming video, yeah, but that’s about all I can tell you, for now. But it looks like we don’t have long to wait. Then came Trump and Executive Privilege will never be the same.
(Hear oral arguments and opinion announcements of Supreme Court cases at www.Oyez.org)
Ike? Yes. Dick? Not so much...
Considering the expansion of Executive Power King Trump of Orange (skin) is proposing, something along the lines of Nixon, but more of all I need is the “say so” part, as in because I said so with no actual attachment of acknowledgment of reality necessary (a benchmark of Trump’s presidency). One might also describe his proposed scope of privilege as nobody or nothing never unless I say so and if I didn’t say so it’s because I didn’t need to. Now go away while I feed the alligators and snakes in my moat. Something like that, the funny apart is I didn’t even have to make up the part about the moat, did I?
Aside from Trump’s apparent fondness for all things medieval including walls, moats, torture, and the resuscitation of Islamic ISIS Caliphates, it is hard to imagine the conservative (perhaps radically, certainly revisionist) Roberts Court, even in this somewhat small way, allowing the Executive to possess those types of powers usually reserved for a monarchy.
Of course, this is not to say that the history of Executive Privilege does not trace its roots back to the privacy rights reserved to the English Crown, most notably by what is still known in England as the Public-Interest Immunity.
Hey, Ike liked it. Kavanagh will like whatever he is told to like. You never know.
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