On Wednesday, President Trump asserted executive privilege to shield documents from Congress that would provide insight into the administration’s decision to add a citizenship question to the 2020 Census.
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 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 President George 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 with 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 F. 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 antitrust 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 not to allow Army officials to testify at hearings 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 slammed the action as an “iron curtain,” but it was 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 onetime vice president who changed that perception.
In 1973, President Richard M. Nixon invoked executive privilege as president to try to stop a congressional order to release secret White House recordings that 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 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 E. 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 prosecutor Archibald Cox.
“Nixon went too far when he claimed executive privilege in an attempt to conceal evidence of White House wrongdoing,” said Rozell, the George Mason University dean. “His actions had the consequence of giving executive privilege a bad name.”
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 a “Fast and Furious” program to track guns. A negotiated settlement was reached in court just weeks ago after seven years, an indication of how long such disputes can take if litigated.
Trump’s assertion of executive privilege could wind up being resolved in the courts, as well. How long that takes is anyone’s guess.