Former President Donald Trump’s assertion of executive privilege to deny the January 6 Select Committee access to his aides, advisers, documents and memo, brings center stage, once again, the issue of the nature, scope and authority for presidential claims to secrecy. Rarely have the stakes for the republic been this high.
The committee’s investigation into the insurrection at the Capitol rightly probes the question of whether Trump incited the insurrectionists to storm the citadel of American democracy, and the extent to which he may have organized and perhaps orchestrated the riots, in conjunction with his aides and allies. The House committee needs access to his papers and documents, as well as the testimony of former aides such as Steve Bannon, who has defied a congressional subpoena because Trump told him that he would invoke executive privilege.
Americans deserve the truth, it bears reminder, but the maze of legal maneuvers and obstruction may prevent ascertainment of all the relevant facts to fully explain the leadership and organization behind the attack on the Capitol. Resolution and perhaps exposure of those responsible for the assault on the Constitution and the Electoral College begins with a better public understanding of the assertion of executive privilege.
The claim of executive privilege is essentially the assertion of authority to withhold information from Congress, the courts and the public, typically on grounds of the need for confidentiality between the president and his advisers. The Constitution makes no mention of the power of executive privilege, and that is where any inquiry into the legality and legitimacy of the assertion must begin.
The framers of the Constitution easily could have provided textual language for the claim of executive privilege, but they chose not to carve out a realm of secrecy for the president. They did, however, grant to Congress, through Article 1, section 5, discretionary authority to impose a veil of secrecy by providing that the legislature, not the executive, would determine what information to publish in what became the Congressional Record.
If delegates to the Constitutional Convention had vested in the president authority to withhold information from the other two branches of government, they would have been granting to the executive an awesome power that was denied to the king of England. The English monarch was duty bound to furnish all information requested by Parliament. It is inconceivable that the framers would have granted the president authority that had been denied to the monarchy. The construction of an executive more powerful than the king against whom the colonists revolted, would have staggered the imagination.
Advocates of executive privilege cannot cite any language in the text of the Constitution, or any argument or train of discussion in Philadelphia or the various state ratifying conventions in which any delegate asserted or expressed interest in the concept of executive privilege. Lacking any evidence of such an interest, let alone an intent to vest such a sweeping and revolutionary power in the hands of the executive, there is nothing in our constitutional architecture to support the claim of executive privilege.
The assertion of executive privilege has become a principal tool in the promotion of executive secrecy and deception. Executive secrecy, it should be clear, represents a continual threat to the values and principles of the republic. Some of the nation’s darkest moments have stemmed from a presidential penchant foe secrecy: the quagmire of Vietnam, the suppression of the Pentagon Papers, Watergate, the Iran-contra scandal, and President George W. Bush’s obfuscation about the rationale for invasion of Iraq. Trump’s act of stonewalling the January 6 Select Committee and the likely burial of the truth of the actors who led and organized the insurrection would rank as one of the darkest days in the history of the nation.
The pernicious effects of executive secrecy have not deterred advocates of executive privilege from asserting its central importance to the president’s performance of his constitutional responsibilities, particularly in matters if national security and foreign affairs. Yet advocates of executive privilege have been unable to document instances in which resort to executive privilege has served the interests of the nation. Nor have they been able to document any national disasters that have resulted from executive transmission of information to Congress.
There are a good many reasons to doubt both the constitutionality and the utility of executive privilege. When the concept of a constitutionally based executive privilege was created by the judiciary in United States v. Nixon, in 1974, it was said to be grounded in the separation of powers. Proponents of executive privilege have also sought its justification in historical precedents. In truth, both of these efforts to establish the legality of executive privilege rest on flimsy scaffolding. We turn, next week, to these arguments and to the decision in the Nixon case, which opened a pandora’s box and unleashed an executive power on the nation that has wreaked havoc on our constitutional system ever since.
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David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.