But the clash is not necessarily over. Defenders of the president have claimed that the whistleblower account relies on hearsay; there will surely be demands by the president’s critics to subpoena the personnel who could confirm and deny the assertions of the whistleblower. The partial transcript of the president’s conversation and the complaint implicate Rudolph W. Giuliani, the president’s personal attorney, and various diplomats; doubtless there will be calls for their testimony.
What then? One resolution is for Congress to seek court enforcement of subpoenas for the relevant documents and the testimony of the various people who, according to the complaint, were witnesses to a months-long campaign to compel Ukrainian officials to provide damaging information on former vice president Joe Biden, his son and former secretary of state Hillary Clinton.
Trump would no doubt assert executive privilege in limiting the sources from which evidence may be compelled — the argument being that the president needs confidentiality to protect sensitive deliberations. On the merits, I suspect that the courts would endorse that understanding of executive privilege, at least when it comes to the testimony of government officials. Granted, as the Supreme Court has concluded in such cases as Nixon v. United States, this protection is a limited one: It covers only matters reasonably related to the exercise of the president’s constitutional powers; the president is not permitted to assert that his interests and the national interest are synonymous.
Writing in Federalists 70 and 74, Alexander Hamilton made the case for “the exercise of power by a single hand” in the day-to-day conduct of national security. “That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man.” Executive privilege is at its apogee with respect to the president’s conduct of foreign affairs.
George Washington and his Cabinet concluded that the president had sole discretion on whether to release the negotiating record of the Jay Treaty to Congress. The principle has been reconfirmed many times, notably by Supreme Court Chief Justice John Marshall in Marbury v. Madison and United States v. Burr.
The rationale for executive privilege is both practical and structural. As a practical matter, in the absence of executive privilege, the ever-present fear of exposure will shape executive deliberations, limiting frank debate and inevitably narrowing the group of people advising the president to those who agree with official policy. The flexibility, feints, threats and inducements that characterize negotiations with foreign powers will be correspondingly limited. In their exchanges with the American president, foreign leaders themselves would be more guarded; they would avoid topics and opinions their domestic opponents could exploit.
As a structural matter, the executive is entitled to the privacy of its internal debates for the same reasons that we do not expose the deliberations of Supreme Court justices with one another and their clerks, or members of Congress among themselves and their committee staffs. We want our representatives and jurists to try on a range of arguments and positions before making decisions. If governing is the art of getting the people from where they are to where they need to be, limiting deliberations to the momentarily acceptable is a recipe for stagnation.
Still, I would not like to see a court confirm a claim of executive privilege in the present circumstances. I am simply no longer confident that the people elected to the presidency would not abuse such a ruling to change fundamentally the relationship of the branches of government, or to frustrate the legitimate role of Congress to prevent the exposure of offenses that might lead to impeachment.
Whether it upheld or denied executive privilege in the case of the Ukraine call, the courts would be writing rules we would find it hard to live by. As Justice Robert H. Jackson once wrote, dissenting in the infamous Korematsu case, which affirmed the right of the military to order the relocation of a Japanese American citizen in World War II: “A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.”
It would be better if the Supreme Court simply sidesteps the question of whether executive privilege protects the tortured efforts that led up to — and perhaps followed — the Ukraine call. Does this mean that the country must enter an extended period of passionate ignorance in which partisans claim a certainty for facts they do not actually know and our institutions are revealed once more to be impotent in the face of a defiant executive who appears willing to court a constitutional crisis rather than seek accommodation with his “tormentors”?
Not necessarily. I believe strongly in the duty of officials who are privy to confidences they did not generate and of whose broader contexts they are in the main ignorant to follow the law and remain silent in public. I have come to believe, however, that there is a way to expose executive abuse without violating the spirit of the rule of law that governs and protects us all.
The much-maligned “bureaucracy” is not composed of fools or disgruntled anarchists. The judgments that bureaucrats are called upon daily to make to execute policies are tempered by experience and animated by a love of country and a veneration of our Constitution. Contrary to the expectations of cynics, these officials often may disagree with such policies but nevertheless do their level best to make them successful. But they are not automatons, not yet anyway.
I hold no brief for the Assanges and Snowdens of this world, and would prefer to see them prosecuted rather than given accolades. Authentic whistleblowers, however, who have scrupulously followed the statutory procedures, reinforce the rule of law. The unnamed whistleblower who was alarmed by Trump’s comments on the Ukraine call, and by what he or she described as attempts to cover up that phone call, went through all the appropriate channels, reporting to the inspector general for the intelligence community, who found the complaints credible and urgent. When that complaint was not relayed to Congress, as provided for by statute — but arguably blocked by executive privilege — other government officials revealed its existence to reporters.
The dangers posed by this lapse of confidentiality, in a legal context like this one, are slight indeed compared with the consequences of a president — any president — determined to put his political survival above the security of our country. Executive privilege remains crucial. But the failure to vindicate such careful and rigorous efforts to follow the whistleblower rules would only lead to workarounds and more-reckless leaks.