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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.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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