A Brief History of Executive Privilege

From George Washington to Donald Trump.

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We’re about to hear a lot about “executive privilege,” and a lot of it will probably be wrong. 

The president’s position—as of this writing—is that he would be very happy to have former National Security Adviser John Bolton, Secretary of State Mike Pompeo, acting White House Chief of Staff Mick Mulvaney and former Energy Secretary Rick Perry all testify at his impeachment trial, which begins today. But, out of an abundance of concern for the institutional integrity of the presidency, he reluctantly will have to invoke executive privilege and forbid them from talking. 

He was recently asked about it by Fox News’ Laura Ingraham. “You can’t be in the White House as president—future, I’m talking about future, any future presidents—and have a security adviser, anybody having to do with security, and legal, and other things,” the president said. 

“Are you going to invoke executive privilege?” Ingraham asked, seeking clarity. 

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  1. Avatar photo
    Theirn Scott

    And so impeachment as a tool of Congress to control the excesses of a president will be thrown into the dustbin of history.

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    Bill Dyer (aka Beldar)

    One more thing that I wish someone in the press or punditocracy would point out to a wider audience:

    When Trump says he's insisting on invoking executive privilege "to protect future presidents," that's an obvious crock of crap. A president who waives executive privilege in one circumstance doesn't waive it for all time and for all future presidents!

    The Trump Administration, just to use the most prominent recent example of many, many such examples, decided to waive executive privilege during the Mueller investigation and quite pointedly and publicly declined to instruct the witnesses Mueller's team interviewed to assert privilege on the POTUS' behalf.

    That didn't — as the logic of Trump's argument now would prove — waive executive privilege on any Ukraine matters.

    So whenever Trump or his proxies claim that Trump would "like" to have other witnesses (like Bolton) testify, and that he'd be voluntarily transparent if it weren't for his obligations to the office and its future occupants, he's repeating a bald-faced, utterly indefensible lie. If I could cross-examine, say, Jay Sekulow on this point, I could extract this admission from him in less than three minutes.

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  3. Tim

    Great primer and truly great takeaway... "We must ignore evidence in an impeachment trial to preserve the ability of future presidents to hide impeachable offenses"

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    Earl King

    In theory even Lawyers cannot without knowledge of a crime. In this case it there a crime? We have behavior. Many don't like the Presidents behavior. I sincerely believe that Trump believes Hunter and Joe engaged in corruption and that Ukraine had some involvement in 2016 and the related conspiracy that has involved him since his election. Hence there can be no corrupt intent if he is sincere in his belief. Whether its wrong or not President do "nutty" things. Obama told us he had no power to write Immigration Law than did so with DACA. Pretty nutty for Con Law professor. In this case I believe all the Presidents men can talk about things that are in the public domain but not speak directly to Presidential conversations. That is the testimony they could give.

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    Bill Dyer (aka Beldar)

    "Piercing executive privilege (without divulging classified material) is not a criminal, or even civil, offense, even if the president orders you not to."

    I think this is more wrong that right. As with attorney-client privilege, the privilege doesn't belong to the subordinate, but to the principal, and the subordinate — even after he leaves his position — has a continuing fiduciary duty not to moot his principal's potential claim of privilege by making an uncompelled public disclosure of the substance of the communication. And courts will, upon an appropriate showing, grant injunctive relief to prevent a would-be traitor to this continuing fiduciary duty from breaching it.

    Thus Trump's threats to obtain an injunction to block even ex-officials like Bolton is not a hollow one.

    "So, it’s up to the 100 senators. They can recognize all or some of Trump’s privilege claims, whether or not those claims would stand up in a court of law."

    I think this is outright wrong. Suppose the Senate (like the House) chooses not to honor the assertion of privilege by one or more subpoenaed witnesses. The Senate's only power to enforce its orders would be through a contempt of Congress proceeding, in which the Senate would have to apply to the Judicial Branch to do the actual locking up of the contemnor. If anything, U.S. v. Nixon stands for the proposition that it's the Judicial Branch, not the Legislative Branch, which ultimately decides whether the party seeking to overcome an assertion of executive privilege has met the burden of doing so. The SCOTUS ruled in that case that Special Prosecutor Jaworski had indeed met that burden in the tapes case, but it was the SCOTUS ruling — not something decreed by either chamber of Congress — that forced Nixon's compliance with the House Judiciary Committee's subpoena.

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      Bill Dyer (aka Beldar)

      I wish there were an edit function here! If so, I'd edit a sentence in the last paragraph of the comment I just left so that it read, more completely:

      "Suppose the Senate (like the House) chooses not to honor the assertion of privilege by the principal of one or more subpoenaed witnesses."

      Again, it's the principal's decision — here, Trump's — and ONLY the principal's decision that can constitute a valid waiver. And the faithless subordinate who disregards his principal's instruction to maintain and assert privilege may find himself on the wrong side of a compulsory injunction obtained by the principal to keep his (the subordinate's) hands tied or, rather, lips sealed.

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        Bill Dyer (aka Beldar)

        Aaaaand ... I also misspoke in my comment: The subpoena in U.S. v. Nixon was from Special Prosecutor Jaworski's grand jury, not the House Judiciary Committee. But the principles are the same, and whether it's a grand jury subpoena or a Congressional subpoena that's being defied, it's still the Judicial Branch that's responsible for enforcing the subpoena through the powers of contempt, whether the contempt is directed at Congress or the courts as the subpoena's issuer.

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  6. Ryan

    Thanks, Jonah! Least biased explainer I've seen on the topic. Would have loved more context on "absolute immunity" and how that differs from executive privilege.

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    Bill Nelson

    A couple of side points (tangential points?).
    Pres. Washington accorded immense deference to Congress in all things. In one other case did he deny congress evidence (there was a military operation against some Native American tribes which ended badly due to command incompetence, Congress wanted heads on pikes and Washington claimed this as his commander in chief function).
    Pres. Jefferson, often an active opponent of the Constitution, expanded the executive privilege argument, and also expanded the Commander in Chief role (first Barbary War). Pres. Jefferson was quite fond of the Constitution when it suited him.
    Lastly. the federal courts do not like to wade in to these fights between Congress and the Executive. They have done so, usually reluctantly. they view these as political battles from which the courts, to the best of their ability, should restrain.
    Very lastly. I have a sense that man believe that Bolton will testify, not to specific Ukrainian wrong doing, but to a general level of incompetence in the Oval Office. this would be more damaging to Trump among republicans.

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    Madeline

    Great article. Clear, informative, concise and without cheerleading for either side. The Dispatch is my new go to site for facts in context and with a dash of humor!

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    Pat Riot

    "If it was not important enough to require the testimony to support the House’s decision to impeach..."

    Bolton *defied* a House subpoena based on Trump's blocking him (and the rest of the witnesses they want to bring forward).

    I agree with Mr. Goldberg that legal procedural arguments are irrelevant here (which won't stop the Republicans from throwing up smoke to that effect nonetheless), but the moral argument being made here is wrong. The Democrats did not simply ignore testimony because they were in a hurry, they were actively (and illegally) blocked from it.

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    Carolyn

    If 51 senators decide they want to hear from Bolton, they will do it for optics and to protect vulnerable senators up for re-election this year. They won't do it because they need to hear from Bolton to make their decision. Some will hear the House collected evidence, and conclude yep, he did it. Others will hear the evidence and say it's all hearsay and there is nothing there. But none of the republican senators and likely 2-3 democratic ones will not vote to remove Trump from office.

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      Bill Nelson

      Not sure this has much to do with optics. We have a representative republic, and yes we elect politicians to office (and they are lower than lawyers in the food chain). But in the main, we must know, and believe, that we generally elect good and decent people of conscience and principle. If not, how can we ever believe in any democracy?

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        Carolyn

        Generally we do elect good and decent people, but clearly not always.

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      Pat Riot

      There are two reasons the Democrats have gone down the impeachment path, and neither are related to actually removing Trump from office.

      The first is the crime itself: people forget that Trump was attempting to *corrupt the 2020 election* with is bribery of a foreign ally dependent on us for their very existence as an independent country. Whether it works to curtail Trump or not, they had to do *something* and the only tool they have is impeachment. Ukraine in particular is *still* in a precarious position and there's probably a 50% chance Trump will keep threatening them after the impeachment trial. Without impeachment, the odds would have been 100%.

      Second, Democrats operate under an assumption that Republicans either don't operate under, or have no choice but to operate under: Democrats believe Trump's legacy will be an extremely toxic one. Worse than Nixon. Worse than Benedict Arnold. Politically worse than the Shah is to Iran, or Pinochet is to Chili, etc.

      Every single move the Republicans are making are *short term* band-aids to temporarily hide evidence or prop up Trump for a few more months. It's unthinkable that all of the information Trump is currently blocking will stay blocked, and the driving force is more powerful than partisan politics: Americans are curious.

      So with that assumption, the Democratic leaders are looking at the next move on the chess board, and gaming out how they will best capitalize on Trump's downfall.

      The first step for that is to disallow any of Trump's current supporters to worm their way out of their record of seamless fealty to Trump. For the Senate, that means making a historic vote. Nobody will remember, "that time I criticized Trump for XYZ...". As we've seen in the recent debates, people remember *votes*.

      At the end of this process 53 Republican US Senators will sign their name next to Trump's in the history books and there will be no erasing this. Every new bit of blocked information made public will be another stake in their political hearts.

      McConnell is falling right into their trap by turning the trial into a sham. But he doesn't think of it as a trap, or if he does, he know he has no choice but to walk into it.

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