The Truth About Executive Privilege: Original Meaning, Early Precedents, Abuse By Modern Presidents, And The Lessons That Should Be Learned

For those who have been in a coma for the last week, or else cryogenically frozen for the last 60 years, executive privilege is the assertion by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. Just this past week, President Barack Obama shamelessly claimed this privilege in order to not have to hand over documents being requested of the Department of Justice by the House Government Reform and Oversight Committee regarding the "Fast and Furious" scandal. The question that deserves a thorough analysis, one that of course the media cannot be trusted to explore, is the basis of this supposed privilege and whether it is actually legitimate. If one is to criticize President Obama, or any other President, for asserting the privilege, one must understand whether such a privilege exists in the first place, and if it does what the strictures of asserting it are. 

THE CONSTITUTION'S TEXT AND ORIGINAL MEANING 

What needs to be understood in any discussion of executive privilege is that the privilege is completely absent from the Constitution's text. Article II lays out the powers of the President, and there is nothing within it that provides the President with this power to thwart and ignore congressional investigation. 

The Committee of Detail at the Philadelphia Constitutional Convention called Congress the "Grand Inquest of the Nation." This title in England referred to Parliament which had clearly unimpeded powers of investigation of officers of the Crown. References to the House of Representatives as the "Grand Inquest of the Nation" are found through the records of the several Ratifying Conventions as well. James Madison wrote in 1788 in Federalist No. 51, "[I]t is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Certainly the colonial experience under King George III that lead to the American Revolution was an important consideration in shaping executive power. All of this of course weighs against the existence of an executive privilege. 

On the other hand, the Constitution was meant to allow for, as Alexander Hamilton stated in Federalist No. 70, an "energetic executive," which would help overcome the weaknesses of the Articles of Confederation. However, it was specifically having a single executive rather than some sort of Presidential council that was meant to allow for this. Hamilton explained, "That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished" (emphasis added). There is nothing to indicate this meant secrecy in the sense of being able to refuse Congress's power of investigation, but rather simply that having one President rather than more than that would help prevent what we today call government leaks. 

 In fact, Alexander Hamilton also wrote in Federalist No. 65, "Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation, as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or in other words of preferring the impeachment ought to be lodged in the hands of one branch of the legislative body." Justice Joseph Story wrote in his 1833 Commentaries on the Constitution, "In England the constitutional maxim is, that the king can do no wrong. His ministers and advisers may be impeached and punished; but he is, by his prerogative, placed above all personal amenability to the laws for his acts... [T]he constitution of the United States, on the other hand, holds out a deep and immediate responsibility, as a check upon arbitrary power; and compels the chief magistrate, as well as the humblest citizen, to bend to the majesty of the laws." While these quotes are more directly referring to Congress's power to impeach, it is fair to say that it applies to the issue of the legitimacy of executive privilege as well. 

Harvard legal historian and law professor Raoul Berger famously called executive privilege a "constitutional myth." The text of the Constitution provides evidence that he was right. When it comes to the need for secrecy in government deliberations, the Constitution provides for it. In Article I, Section 5, Clause 3 it is Congress that is given the power "to keep a Journal of its proceedings, and from time to time, publish the same excepting such parts as may in their judgment require secrecy." No comparable clause regarding secrecy appears in Article II delineating Presidential powers. Not only that, but Article II, Section 4 actually states, "The President...shall be removed from Office on Impeachment for and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors." How could impeachment proceedings be properly conducted if the executive branch could simply withhold all information? Furthermore, Article II, Section 3 contains the famous provision that the President "shall take care that the laws be faithfully executed." This demonstrates an inherent responsibility to Congress which passes the laws. If Congress wants to investigate whether the President is failing on this most basic of Constitutional duties, it runs against this provision to claim the President can simply refuse to comply. 

Finally, a relevant yet weaker piece of textual evidence can be seen with the duty of the President to provide a State of the Union of Address: "He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." The purpose of this is largely to allow for Congress to be informed in making legislative determinations. However, it can also show that the President has a duty to report to Congress. If Congress is conducting an investigation, the President should comply. 

CONGRESS ON ITS POWERS OF INQUEST 

A survey of just a few examples of what Congress has thought of its own power of investigation is worth noting. The first Congress passed legislation mandating the Secretary of the Treasury to give Congress information "respecting all matters referred to him by the House of Representatives, or which shall appertain to his office." Rep. Elias Boudinot had noted that, "this power is essentially necessary to the Government … it is absolutely so." There were no contrary arguments. This first Congress was of course packed with framers and ratifiers of the Constitution. This of course stands as the most important evidence on Constitutional meaning from the Congress itself. 

An 1843 House Report stated the following: "The House of Representatives has the sole power of impeachment ... a power which implies the right of inquiry on the part of the House to the fullest and most unlimited extent." Even those who advocate for the most expansive views of executive power must realize this argument is difficult to assail. An 1860 report of the House of Representatives goes even farther stating, "The conduct of the President is always subject to the constitutional supervision and judgment of Congress; while he, on the contrary, has no such power over either branch of that body." 

EARLY PRECEDENTS SET BY EARLY PRESIDENTS 

If such an executive privilege does exist despite the evidence just put forward, it is clearly absent in the text of the Constitution. Therefore, it would exist as an "implied power" from the structure of the government itself. The idea of certain communications being privileged is not an outlandish idea as a practical matter, and communicative privileges exist throughout the law. But it is early American history that actually provides the strongest basis from which to adjudge the legitimacy of the privilege in practice. 

It is critical to look to the actions of early Presidents not for evidence of original meaning of the Constitution's phrases, but rather for evidence of the first application of the Constitution in actual government. It is important to learn from how the Constitution unfolded early in American history, to see what it meant when the document was actually applied (or misapplied, e.g., the Sedition Act of 1798). Looking to Presidents George Washington and Thomas Jefferson are essential to this inquiry.

PRESIDENT GEORGE WASHINGTON

The first ever example of executive privilege in our Constitutional republic came with a congressional request to investigate the 1791 failure of General Arthur St. Clair against American Indians in the Battle of Wabash River. Washington's cabinet convened, and his Secretary of State Thomas Jefferson later wrote: "We had all considered and were of one mind... that the Executive ought to communicate such papers as the public good would permit, & ought to refuse those the disclosure of which would injure the public. Consequently were to exercise a discretion." However, Washington being a man of immense integrity and aware that his actions served as precedent for all future Presidents, released the requested information because he determined such release would not harm the national interest. This despite the fact that revealing information on a failed military expedition could obviously not benefit his personal political interest. 

In 1794, Congress asked for correspondences between Washington and France. His cabinet again believed he could withhold such information. Yet in response to this request, Washington allowed the Senate to examine some parts of the correspondence subject to his approval. 

In 1796, Washington finally stood his ground. Congress wanted information from the President on the negotiations over the Jay Treaty. Specifically, a House resolution requested that Washington provide information concerning instructions given to the U.S. Minister [Ambassador] to Britain. This time, Washington didn't comply. Washington said that "The nature of foreign negotiations requires caution, and their success must often depend on secrecy... The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate..." He further explained, "the boundaries fixed by the Constitution between the different departments should be preserved... To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent." That being said, Congress didn't take action, but did actually pass non-binding resolutions to show they disagreed, and Congressman James Madison defended the House's "right" to request information.

PRESIDENT THOMAS JEFFERSON

Thomas Jefferson made statements tantamount to a privilege as well. In the 1807 treason case against former Vice President Aaron Burr, the defendant requested the court subpoena certain letters of President Thomas Jefferson in an attempt to prove the charges were politically motivated. A House resolution asked that President Jefferson "lay before this House any information in possession of the Executive, except such as he may deem the public welfare to require not to be disclosed." Jefferson responded by declaring Burr's guilt "beyond question." However, Supreme Court Chief Justice John Marshall sat as the trial judge on this case and he would have none of it. Marshall issued the subpoena stating, "Courts should issue subpoenas based on the character of the information sought, not the character of the person who holds it." Though Jefferson disagreed, he turned over the letters.

WHAT DOES THIS ALL MEAN?

First it must be recognized that actions of early Presidents do not serve as actual evidence for original Constitutional meaning, because as James Madison stated in a letter in 1826: "[T]he sense of the Constitution, where alone the true one can be found: in the proceedings of the Convention, the contemporary expositions, and above all the ratifying Conventions of the States." The reason this should be seen as preeminent in explaining Constitutional meaning is, as Madison wrote in a letter in 1824: "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution."

That being said, there are important lessons that can be gleamed from early Presidents. That is that should such a privilege exist, it should never be asserted for the purpose of hiding political misbehavior. If anything, it should be asserted, like Washington with the Jay Treaty, when the President is engaged in performing his Constitutional duties and Congress's curiosity could only serve to harm. There is little basis to believe that a blanket privilege that is meant to allow the President to remain unaccountable to Congress for political malfeasance has basis even in the actions of the earliest Presidents. 

 SUPREME COURT PRECEDENT 

The Supreme Court in the 1927 case of McGrain v. Daugherty stated

"In actual legislative practice power to secure needed information by such [investigative] means has long been treated as an attribute of the power to legislate. Itwas so regarded in the British Parliament and in the Colonial legislatures before the American Revolution ..."

Clearly, the most important Supreme Court precedent is the 1974 case of United States v. Nixon. In that ruling the Court stated:

"[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide."

In the 1997 case of Clinton v. Jones, the Supreme Court also ruled that separation of powers does not mean that the the President can use a privilege that would mean refusing to take part in civil litigation. The Court ruled:

"In sum, '[i]t is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the President of the United States.' Fitzgerald, 457 U. S., at 753-754. If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President's official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct."

Suffice it to say that while the Supreme Court has not refused to recognize Presidential privileges outright, it has been unwilling to allow the President to utilize such a notion to be held unaccountable in civil court or for potential criminal conduct. 

ABUSE OF EXECUTIVE PRIVILEGE BY MODERN PRESIDENTS 

Harry Truman is the first modern President that should be looked to for refusal to cooperate with Congress. Conservative Journalist M. Stanton Evans writes in his book Blacklisted by History (p. 23):

"From 1946-1948 several flagrant security cases at State and elsewhere became known to members of the House and Senate, who exerted pressures behind the scenes to have some of the more obvious suspects ousted. There then followed a series of congressional investigations...[culminating in] the Hiss-Chambers case that sufarced in the summer of 1948. At this point, however, congressional efforts to learn more about the problems would be stalled out by secrecy orders from the President Truman, denying FBI and other executive data on seucirty problems to members of the Congress. Investigation of the State Department and other cases was accordingly stymied, and the whole was left handing behind a veil of omerta and denial."

Thus starting with Truman we have the President of the United States refusing to cooperate with Congress to prevent investigations regarding communists working within the federal government at the Cold War's infancy. 

Then we have President Eisenhower asserting the privilege during the Army-McCarthy hearings in 1954. It was revealed during the hearings that the White House was planning an attack on Senator Joseph McCarthy far in advance of the hearings. McCarthy then did not have access to necessary evidence as President Eisenhower invoked the privilege over 40 times during the hearings. We thus have two modern Presidents asserting privilege, one to hide evidence of potential communist infiltration of government, and the other to patently not allow for a fair hearing for Senator McCarthy (the very symbol of domestic anti-communism). Paradoxically, opponents of Richard Nixon would later scoff at the idea of utilizing executive privilege to hide the truth regarding the Watergate scandal. 

Aside from President Nixon, President Clinton asserted the executive privilege and became the first President since Nixon to lose in federal court, ruling that Clinton aides could be called to testify in the Lewinsky scandal. Other Presidents have invoked it on other occasions for dubious or clearly ridiculous reasons as well, but a survey of but a few instances since Truman certainly serves to make the point that this privilege has been abused in being used to simply cover the President's backside. 

Today, President Obama asserts the privilege when Congress is requesting documents regarding a gun-walking operation where the federal government sold weapons to Mexican drug cartels resulting in hundreds of dead Mexicans and the death of Border Agent Brian Terry. 

CONCLUSION 

The executive privilege has no basis in the Constitution's text or original meaning. It has some basis in the actions of early Presidents. The Supreme Court has thus far not taken a terribly fond view of the privilege, and it has certainly been abused in the modern era. This Presidential privilege may not actually exist at all given the lack of evidence for it during the Constitution's ratification process. In fact, there is evidence that runs directly against its existence. 

The abuse by modern Presidents of this supposed privilege should demonstrate why this privilege is dangerous in allowing the executive branch to remain unaccountable for its misdeeds. That being said, the strongest evidence for its existence revolves around early American Presidents like Washington and Jefferson. But even they showed that they would provide information on St. Clair's Defeat or bend to the will of a trial court in a treason case where the defendant was a political opponent, as well as the judge. What is made clear is that covering up political or criminal malfeasance is certainly no part of any constitutional executive privilege. If such a privilege is to exist, and that remains a dubious proposition, it cannot be asserted in cases where Congress is investigating the executive for misconduct. If the President is, on the other hand, in the midst of exercising his Constitutional duties and such investigation would impair such abilities (e.g., negotiating a treaty) the case for such a privilege is strengthened. 

Now we have indeed explored the basis for executive privilege.  And we are now on firm ground in critiquing President Obama's recent use of this immunity.  What should now be beyond doubt, whether the privilege is nonexistent or limited to some early examples of the first Presidents, is that President Obama's assertion of executive privilege in the "Fast and Furious" scandal is utterly and completely illegitimate. And given the context of the scandal which resulted in dead Mexicans and a dead American, it is absolutely shameful. Tweet