But few pause to ask where a president’s supposed executive privilege comes from. What if the oversight pileup we’re witnessing flows not from Trump’s norm-busting tendencies but rather from the hazardously open-ended concept of executive privilege itself?
Conservative jurists have ferociously criticized the idea of “unenumerated” constitutional rights (such as a right to abortion), describing them as licenses for partisan entrepreneurship. Yet the right to executive privilege is not mentioned in the Constitution’s text, either, and its historical pedigree is dubious: In the early republic, presidents did not consistently claim a constitutional right to withhold information from Congress. When the privilege has been invoked, it’s been in situations laced with obvious self-interest and partisan motives. Strikingly, its formal judicial recognition came almost 200 years after the founding. Its tenuous foundations ought to shape how we evaluate Trump’s invocation of executive privilege.
Start with the constitutional text — or, rather, with the absence of any relevant language in the Constitution giving the president power to withhold documents or to prevent testimony by executive-branch officials.
Article I vests in legislators a right to “not be questioned” about “any Speech or Debate in either House.” This “speech and debate” protection gives members of Congress the ability to decline to testify in court, or to produce documents related to their lawmaking responsibilities, without fear of being held in contempt. Courts have rightly read the language broadly to encompass privilege claims by legislators’ aides and even to prohibit FBI searches of lawmakers’ offices during corruption investigations.
In stark contrast, Article II, which governs the executive branch, conspicuously lacks parallel language about a privilege. This is not because the framers were sketching the presidency with broad strokes, failing to include details comparable to those in Article I. For example, Article II outlines the president’s right to seek Cabinet heads’ written opinion about the departments they oversee, and even explains the process by which the president can make temporary appointments when the Senate is in recess. If the founders thought something like executive privilege existed, it seems they would have said so.
The late Raoul Berger, a leading originalist scholar on executive privilege, called the presidential perquisite a “constitutional myth.” He noted, too, that the president’s Article II obligation “to from time to time give to the Congress information on the State of the Union” has no stated limit. For Berger, it was clear that the president had a primary obligation of disclosure to lawmakers, not a license for reticence.
When Justice Departments are called on to defend executive privilege, Republican and Democratic appointees generally cite history, not text . George Washington, they say, invoked it in 1792 against the House’s request for documents related to a disastrous military defeat in the Northwest Territory. The president instructed Secretary of State Thomas Jefferson to convince Congress that such an investigation would be counterproductive. Later, Presidents John Adams and Jefferson also took the position that they did not need to comply immediately with Congress’s demands for pieces of information.
But this historical practice isn’t as relevant as government lawyers imagine. Neither Washington nor Adams nor Jefferson made any constitutional claim. Washington appealed to “the public good” and lamented the “impolitic” nature of such requests, while Jefferson mentioned principles of “safety” and “justice” when refusing to disclose specific documents. Certainly, none offered the blanket contempt for congressional inquiry that the current president has telegraphed. And Congress did nothing to suggest that it had accepted the sweeping idea of executive privilege.
The Justice Department’s own historical documentation shows that it was not until the populist Andrew Jackson entered the White House that refusals to disclose would be underwritten with nebulous references to “the constitutional powers of the Executive.” Jackson made this sort of claim when Congress tried to investigate his dealings with the Bank of the United States, for example.
The Supreme Court did finally recognize executive privilege in forceful and bipartisan terms — but not until 1974 (meaning executive privilege is one year younger than the right to abortion, as outlined in Roe v. Wade ). In United States v. Nixon , the justices said the privilege was necessary for the smooth functioning of the executive branch. It arose, Chief Justice Warren Burger wrote, from the need for “candor” between the president and his senior advisers. Still, it was tightly limited: In the face of a judicial subpoena, the privilege gave way.
There have been skirmishes since over the boundaries of executive privilege. A lower court in 1997 denied a claim by former agriculture secretary Mike Espy in the context of an independent counsel investigation. A decade later, another lower court rejected blanket invocations of the privilege by former George W. Bush White House staff members Harriet Miers and Josh Bolten. (The White House was able to stall the litigation long enough to avoid politically embarrassing testimony.)
But beyond those cases, the executive has generally won. The modern court’s enthusiasm for executive privilege is not surprising. The president’s central role in selecting justices means a high percentage of appointees have had formative experience working for the executive branch — six of nine at the moment. This translates into a general deference among the justices to executive-branch claims. Still, that doesn’t mean executive privilege is written in stone. Because it lacks a clear historical or textual anchor, the justices have broad discretion to narrow it (or let it run rampant).
In the 1974 Nixon case, the Supreme Court held that presidents can’t do their job effectively without shielding at least some decision-making from exterior scrutiny. Really? In Britain, the opposite rule long prevailed. Until the 2000s, government meetings were held in the presence of officials who would prepare written minutes to ensure “clarity, formality, and consistency,” in the words of one scholar of the British constitution. When the government changed parties, internal deliberations would therefore routinely fall into the hands of the political opposition. (The policy changed under Prime Minister Tony Blair.)
Clearly, mature constitutional democracy is possible without anything like executive privilege. Inter-party transparency makes officials debate and decide issues with an eye to how they might sound if their discussions were made public, which could reduce levels of partisanship and self-interest.
In the court of public opinion, claims of executive privilege, especially blunderbuss ones like Trump’s, should be met with skepticism. That’s because the concept is a late, dubious addition to constitutional law — and because democracy and the rule of law are ill-served by the concept.
Read more from Outlook: