Mark J. Rozell is author of the book “Executive Privilege” and is dean of the Schar School of Policy and Government at George Mason University.
As the political firestorm over Judge Brett M. Kavanaugh’s nomination to the Supreme Court rages, the Trump administration has decided to withhold from the Senate Judiciary Committee more than 100,000 pages of records regarding Kavanaugh’s time in the George W. Bush administration.
I call foul: The administration’s action does not meet any of the reasonable standards for exercising presidential privilege.
The power of the president to withhold documents and testimony from Congress and the courts is not specifically granted in the Constitution, but such a privilege has long been recognized in constitutional law — going back to the early years of the republic. Presidents occasionally have secrecy needs that must override other branches’ claims to information they deem necessary to carry out their own constitutional functions.
Though President Trump has not officially invoked executive privilege over the Kavanaugh documents, the administration claims — as have many previous administrations — that a president’s right to receive candid, confidential advice must be protected. Releasing George W. Bush-era internal documents that reveal Kavanaugh’s advice to the president, it argues, would violate that principle. The administration, in effect, is exercising executive privilege without saying so.
Withholding documents or testimony generally is defensible only when done to protect national security or another substantial public interest. Confidentiality does not exist for its own sake, but rather to protect the national interest by assuring that presidents can receive the best possible advice, and that their closest advisers do not have to fear public disclosure of every utterance and the consequences that may follow.
Nonetheless, the power to withhold information is not absolute. Just as presidents and their advisers have confidentiality needs, Congress and prosecutors must have access to executive-branch information to carry out their investigative and oversight functions. Therefore, executive privilege must be weighed against Congress’s legitimate need for information to perform its constitutional role (which is not absolute, either).
The Trump administration’s claim that it is allowed to refuse to turn over documents relevant to the Senate’s review of a judicial nominee fails for three reasons:
First, the right of confidentiality of advice to the president does not exist in perpetuity. In 2002, the Bush administration tried to claim executive privilege over deliberative documents from the Justice Department that were more than two decades old. I testified then before a Republican-majority House Government Reform and Oversight Committee that challenged the president’s action to the point of forcing the administration to turn over critical documents.
The committee members made the right decision when they refused to give a pass to a president of their own party, instead upholding their congressional prerogative to conduct an investigation. Their key objection was that the need to protect internal deliberations weakens substantially over time. The same applies to documents handled by Kavanaugh during the Bush administration.
Second, in our constitutional system, the burden is on the executive to prove it has the right to withhold information, not on Congress to prove it has the right to investigate. Executive privilege — even if an administration doesn’t specifically refer to it in such terms — should be reserved for the most compelling reasons. It should not be invoked to protect the political interests of the president, or, in this case, to advance his odds of having his judicial nominee confirmed. Short of a strong showing by the executive branch of its need to withhold documents, Congress’s right to access information must be upheld. The Senate Judiciary Committee, regardless of partisan leaning, should not forego its own institutional prerogative to fully vet a nominee.
On that point, there is ample precedent, including the attempt by the Reagan administration in 1986 to prevent Senate review of Nixon-era documents that were relevant to the nomination of Justice William H. Rehnquist to be elevated to chief justice. Members of the committee told the president there would be no hearing on the nominee until documents were forthcoming. The president caved, and the release of the documents caused no harm to the republic.
Finally, the weight of the matter at hand is germane to determining the outcome of any balancing test between the claim of the executive and a challenge by Congress. Confirming a lifetime appointment to the nation’s highest court is one of the weightiest decisions the Senate makes. The senators simply cannot properly fulfill their duty without the full record of the nominee they must consider. Indeed, to vote on the nominee without having considered the full record taints the outcome of the Senate’s deliberations.