Executive privilege: Flimsy historical defenses

Delegates to the Constitutional Convention, as we have seen, did not fail to address the issue of presidential authority to invoke executive privilege. Rather, they chose not to clothe the president with power to withhold information from Congress.

The framers of the Constitution, part of a generation that fought executive tyranny in the form of King George III, studiously avoided any pretense of granting to the newly-minted presidency a power that was denied to the English monarchy.

The absence of any mention of executive privilege in the text of the Constitution, and fact that the framers never contemplated vesting such authority in the president, has not stopped advocates from asserting it. Since every inquiry about constitutional authority begins with the text and debates in the Constitutional Convention, precisely where, we are entitled to ask, do admirers of executive privilege purport to locate such authority?

Various writers have attempted to ground executive privilege in early historical practice, that is, in claims that founding presidents asserted a sweeping, discretionary power to withhold information from Congress. These claims, however, are not supported by the facts.

The lists begin with the assertion that President George Washington established early precedents, beginning with an investigation in 1792 by the House of Representatives into the disastrous military campaign of General Arthur St. Clair against an Indian tribe.

The House had appointed a committee to investigate the “causes of the failure” of the campaign and had vested in it the authority to call for persons and papers to assist the investigation. For his part, President Washington recognized the authority Congress to conduct an inquiry into the conduct of an executive officer, which reflected the historic practice of parliamentary inquiries into executive actions. As president, however, he cooperated completely. Washington complied with the committee’s demand and freely supplied all materials and documents relevant to the failed expedition. He offered no separation of powers objection.

The theory that Washington invoked executive privilege during the St. Clair Affair stems from nothing that Washington did or said, but rests, rather, on an excerpt from Secretary of State Thomas Jefferson’s notes of a cabinet meeting. Jefferson wrote that the cabinet had agreed that the “house was an inquest, and therefore might institute inquiries,” but determined that the president had discretion to refuse papers, “the disclosure of which would injure the public.”

There is no reason to doubt the accuracy of Jefferson’s notes, but little, if any, precedential value can be gleaned from this episode. First, Washington complied with the demands of the committee and supplied everything requested. Second, there is no evidence that Jefferson’s notes were presented to Congress or filed with the government. In short, they formed no part of the public record; there was no assertion to Congress of a right to an executive privilege and no statement or declaration of an executive power to withhold information from Congress. Finally, any precedential value is vitiated by the fact that neither Washington nor Jefferson ever invoked the St. Clair “precedent” in subsequent episodes that allegedly involved their respective claims to executive privilege.

Consistent with his understanding of an executive responsibility to provide information to Congress, Washington, that same year, also supplied the House with information relevant to an inquiry into the alleged accusations of impropriety brought against Secretary of the Treasury, Alexander Hamilton.

In 1796, Washington refused to provide information to the House for information relative to the Jay Treaty, but not for reasons of executive privilege. Rather, he withheld the requested materials on grounds that the House has no part of the treaty power. Ultimately, James Madison persuaded Washington to share the requested information on the basis of prudence and comity. As Madison pointed out, Washington, eventually, would need financial support from the House to carry out the terms of the treaty. Washington saw the light and provided the information sought by the House.

During Washington’s tenure, the issue was not executive concealment from Congress, but disclosure to the public. Scholars have demonstrated that Washington provided the requested information, some on a public, and some on a confidential basis. On some occasions, Congress disclosed the information the public; on others, Congress persuaded the executive to disclose the information to the public. Congress, as we have seen, possessed the constitutional authority under Article 1, section 5, to withhold information from the citizenry.

Some writers have falsely asserted that President Thomas Jefferson invoked executive privilege to withhold information from the courts in the 1807 treason trial of Aaron Burr. Burr had requested from Jefferson a letter written to him by Gen. James Wilkinson. Jefferson’s attorney, George Hay, informed Chief Justice John Marshall, who was presiding over the trial, that he would submit the letter, with recommendations for material that might not be disclosed, “for reasons of justice,” that is, to protect the reputation of those not material to the trial, but that he would “defer” to Marshall’s determination of what might be deleted from the letter. Thus, Jefferson never asserted executive privilege, nor did he ever challenge the authority of the court to demand information from the president.

Neither Washington nor Jefferson ever asserted executive privilege, contrary to the claims of reckless writers. Indeed, no president ever invoked executive privilege until 1954, when Dwight D. Eisenhower asserted it to withhold information from Sen. Joseph McCarthy in the midst of the McCarthy-Army hearings. Eisenhower’s refusal to furnish information to the Wisconsin demagogue was applauded by from coast to coast. The popular decision of a popular president, however, would become a regrettable one, with the passage of time.

The alleged basis for executive privilege, then, cannot be found in the text of the Constitution, the debates in the Constitutional Convention, the various state ratifying conventions or in early government practice. The constitutional basis for the claim, as we shall see next week, is to be found the Supreme Court’s lamentable creation of the power, in the landmark case of United States v. Nixon, in 1974, to which we turn next week.