Executive privilege has contentious history, from George Washington to Donald Trump
By RONALD G. SHAFER | Special To The Washington Post | Published: June 12, 2019
Dwight Eisenhower was the first president to use the phrase "executive privilege" after refusing to allow his advisers to testify at a Senate hearing in May 1954. Eisenhower believed that what is said in the White House should stay in the White House.
"Any man who testifies as what he told me won't be working for me that night," the president said.
On Wednesday, President Donald Trump asserted executive privilege to shield from Congress documents that would provide insight into the administration's decision to add a citizenship question to the 2020 census.
It is the second time the president has invoked executive privilege. In May, he asserted it over special counsel Robert Mueller's report.
Executive privilege is "the right of the president and high-level executive branch officers to withhold information from Congress, the courts and ultimately the public," according to Mark Rozell, dean of the Schar School of Policy and Government at George Mason University. Executive privilege, Rozell wrote, can be used to protect national security and "the privacy of White House deliberations."
The U.S. Constitution makes no mention of the concept of executive privilege. However, presidents from George Washington to Trump have resisted demands to share sensitive information with Congress. Some have succeeded. But over the past few decades, presidents have lost key court battles to withhold information.
It all began in 1792, when Washington declared that he didn't have to provide internal documents demanded for a congressional investigation into a disastrous military loss by Maj. Gen. Arthur St. Clair to Native Americans. Treasury Secretary Alexander Hamilton warned that in the future, Congress "might demand secrets of a very mischievous nature." But Washington eventually turned over papers that "the public good would permit."
In 1804, President Thomas Jefferson claimed he was exempt from a subpoena for him to testify at the trial of his former vice president, Aaron Burr, who was charged with treason.
"Constantly trudging" to the trial in Richmond, he said, would prevent him from fulfilling his presidential duties. Chief Justice John Marshall, who was presiding over the trial, ruled that the president wasn't exempt. Jefferson didn't testify, but he did "voluntarily" provide documents sought by Burr, who was acquitted.
Presidential power expanded in 1833, when President Andrew Jackson refused a demand by the U.S. Senate to turn over a list of advisers whom he consulted before moving money from the national bank to state banks. "I have yet to learn under what constitutional authority that a branch of the Legislature has a right to require of me an account of any communications," Jackson responded. The Senate voted to censure Jackson, but it still didn't get Old Hickory's documents.
President Grover Cleveland "almost single-handedly restored and strengthened the power" of the presidency by his frequent use of executive privilege, according to Henry Graff, professor emeritus of history at Columbia University. After taking office in 1885, Cleveland declined to hand over documents to Congress "in the fight over presidential appointments," Graff wrote.
In 1909, President Theodore Roosevelt refused to give the Senate his administration's papers about an anti-trust prosecution of U.S. Steel Corp. To make sure senators didn't get the documents, Roosevelt had them moved to the White House.
"The only way the Senate or the committee can get those papers now is through my impeachment," he declared.
The clash over presidential confidentiality grew more intense when Eisenhower ordered his defense secretary to not allow Army officials to testify at hearings led by Sen. Joseph McCarthy, R-Wis., into alleged communists in the Army. On May 17, 1954, Eisenhower wrote a letter that cited the need for advisers in the executive branch to be in the position "to be completely candid" in providing internal advice.
At a meeting before issuing the letter, Eisenhower said he had tried to stay out of the "damn business on the hill." But "I will not allow people around me to be subpoenaed." McCarthy criticized the action as an "iron curtain," but it was the beginning of the end of his red-baiting hearings.
Eisenhower's letter didn't use the words "executive privilege," but it soon established the practice under that name. The Eisenhower administration used executive privilege a record 44 times, raising concern that the president had too much power. It was Eisenhower's vice president, Richard Nixon, who changed that perception once he became president.
In 1973 Nixon invoked executive privilege to try stop a congressional order to release secret White House recordings that had been revealed during Senate Watergate hearings. Nixon argued that "the special nature of tape recordings of private conversations is such that these principles (of executive privilege) apply with even greater force to tapes of private Presidential conversations than to Presidential papers."
On July 24, 1974, the U.S. Supreme Court unanimously ruled that Nixon had to turn over the tapes. The justices upheld the right of executive privilege but they ruled that this privilege couldn't be used to withhold material sought for a criminal proceeding. Chief Justice Warren Burger, whom Nixon had appointed, noted the precedent of the decision in the Burr trial that a president was "not above the law."
"The decision establishes the legal duty of even a President to furnish evidence of what was said in conversations with his closest aides when relevant to the trial of a criminal cause," wrote former Watergate Special Watergate Prosecutor Archibald Cox.
"Nixon went too far when he claimed executive privilege in an attempt to conceal evidence of White House wrongdoing," said George Mason University's Rozell. "His actions had the consequence of giving executive privilege a bad name."
The Nixon precedent also turned out to be bad news for President Bill Clinton, who invoked executive privilege 14 times during the investigation by independent counsel Kenneth Starr. In 1988, a federal judge ruled that Clinton couldn't use the action to block questioning of his aides about his relationship with White House intern Monica Lewinsky.
Since then, President George W. Bush asserted executive privilege six times. President Barack Obama took the action once in 2012, when his Justice Department refused to turn over documents sought by the Republican-controlled House for the "Fast and Furious" program to track guns. A negotiated settlement was reached in court just weeks ago, after seven years, an indication of long such disputes can take if litigated.
Trump's assertion of executive privilege could wind up being resolved in the courts as well.