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.David Adler would love to hear from you!
Email him at NDWTPColumn@gmail.com with any questions or comments you have.
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.
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