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Executive Privilege is Fundamental

eye on the news

Executive Privilege is Fundamental

President Trump faces an impeachment effort from the House of Representatives, which has thoroughly politicized its oversight responsibilities. September 12, 2019
Politics and law

The House Judiciary Committee, led by Democratic congressman Jerry Nadler, is moving steadily toward initiating impeachment proceedings against President Trump. The president’s repeated assertion of executive privilege in his legal conflict with Nadler is the latest example of his alleged disregard for the rule of law. Nadler previously subpoenaed former White House counsel Don McGahn and former White House communications director Hope Hicks. Corey Lewandowski, Trump’s first campaign manager, along with Rick Dearborn and Rob Porter—both former White House aides—were also recently summoned to testify. They join a long line of targeted administration officials, including Jeff Sessions, Rod Rosenstein, John Kelly, and Jared Kushner. Undoubtedly, Trump will assert executive privilege to prevent his administration officials and advisors from testifying before the congressman’s committee, as he did with McGahn and Hicks—and the media will find lawyers to claim these assertions are overbroad, baseless, and dangerous.

What’s lost in these talking points is definition, context, and rationale. As a threshold matter, executive privilege is neither novel nor sinister. Its historic pedigree was established by George Washington, who, in 1792, reserved the right to withhold from Congress the content of White House deliberations and records that it sought regarding the death of 600 U.S. soldiers in a Native American ambush along Ohio’s frontier. Washington asserted it again, in 1796, when he refused to disclose to the House of Representatives documents related to the Jay Treaty, which sought to resolve outstanding issues with Great Britain. Washington’s example reminds us that executive privilege is not some obscure legal theory manufactured by Richard Nixon to conceal his duplicity in connection with Watergate.

In discharging his responsibilities, the president must receive candid, and often unpopular, advice from his advisors. In United States v. Nixon, the seminal case on executive privilege, the Supreme Court reasoned that “the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.” The specter of public disclosure would chill open deliberation among the president’s men and, as a result, impede energetic executive action.

For Congress or the courts to compel disclosure of these discussions would allow co-equal branches of government to infringe on the unique role that the president plays in the American constitutional order. Unlike congressmen, senators, and judges, the president alone is vested with executive power. Though the Constitution is silent on the matter, the Supreme Court reasoned that “the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.”

Executive privilege has limits. Like the executive, Congress has “its own assigned area of constitutional duties.” Under its Article I legislative power, Congress holds the authority to investigate and conduct oversight of the executive branch and compel the production of testimony and documents to this end. Congress’s implied power to investigate emanates from its express power to legislate. As the Supreme Court put it in McGrain v. Daugherty, in 1927: “The power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”

This authority enables Nadler’s committee to issue subpoenas for Trump’s cabinet officials and advisers. And if one is on the business end of a congressional subpoena, one does well to take it seriously. Failure to comply may result in a visit from the House of Representatives’ Sergeant at Arms—a man empowered to arrest and imprison contumacious witnesses unless and until they comply with the subpoena. Alternatively, Congress can cite the disobedient witness for contempt and refer the matter to the United States Attorney’s Office for the District of Columbia for criminal prosecution. Finally, Congress can request a court order commanding the subpoenaed target to comply. 

The validity of executive privilege claims is rarely litigated because the threat of constitutional crisis hangs over any assertion of power by one branch over another. Politics is thus the primary method of adjudicating these competing claims—and politics favors the popular. The American president, however, should not be hampered in executing his critical functions just because he’s out of favor with the MSNBC crowd.

The solution, as it were, is a call to statesmanship—or appealing to the better angels of Nadler’s nature and, to a lesser extent, Trump’s. If Nadler can resist the temptation to investigate Trump, in the words of Earl Warren, “solely for the personal aggrandizement of the investigator or to punish those investigated,” then he has a patriotic opportunity to transcend petty partisanship. “Through the normal political process of confrontation, compromise, and accommodation,” as one expert on executive privilege explained, Congress and the president can “resolve their differences over executive privilege” disputes. We will not cease hostilities in the misguided partisan constitutional warfare of the last two decades by “resorting to the solution that was rejected by the Framers—that is, by demanding constitutional certitude.”

The Supreme Court has made clear that executive privilege commands that Congress and the courts bear a “very heavy responsibility to see to it that Presidential conversations . . . are accorded that high degree of respect due the President of the United States.” The president is subject to the rule of law, but the dignity and demands of his office afford him protections unavailable to others. John Marshall alluded to this status at the trial of Aaron Burr for treason, writing that “in no case of this kind would a court be required to proceed against the president as against an ordinary individual.”

Executive privilege, however, is not designed to serve the president’s personal interests, but those of the public. It recognizes the presidency’s unitary and unique constitutional commitments. Federalist 70, written by Alexander Hamilton, explains “energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks . . . to the steady administration of the laws . . . [and] to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” There is only one chief executive.

Nadler, on the other hand, for all his pontificating on Trump’s “richly deserved” impeachment and his condemnation of the president’s claims of executive privilege, is one of many. The Constitution does not charge him with defending the nation, prosecuting foreign wars, receiving and acting on intelligence briefings, or appointing Supreme Court justices. He should execute his oversight responsibilities with the dignity, humility, and seriousness befitting his office. After all, he is easily replaceable in his next election. I ought to know—I’m one of his constituents. 

Photo by Zach Gibson/Getty Images

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