When we think of the term executive privilege, we tend to think of scandal, smarminess, secrecy, and crimes committed by the executive branch – okay, we tend to think of Richard Nixon. Executive privilege, however, is as old as the presidency itself, dating back to George Washington; there is no reason to think he had anything to hide. I mean, he couldn’t tell a lie, after all.
While executive privilege dates back to the founding of the country, framers did not include the concept in the constitution. Before we get too far down this rabbit hole, though, let’s explore what executive privilege actually is.
What do we mean by executive privilege?
Executive privilege is when the executive branch of the government withholds information because they assert that it is in the best interest of the public. Pragmatically, executive privilege is important because it provides protection for the people advising the president. Imagine a scenario in which the president has to make a tough decision (that’s pretty much the job of being president, right?)
Let’s say the president decides to go to war. Hopefully, the president will have had a number of advisors helping him make that decision. Without the protections afforded by executive privilege, the advisors’ advice could be made public. Thus, if advisors were constantly under the scrutiny of knowing that their comments could be made public, they may not be willing to give the president the best advice; they might only give advice that would mitigate their role in a potential policy failure.
So, even though executive privilege has often times been seen as a mechanism for hiding wrongdoing, it is also essential to the presidency; a president would not be able to conduct business without it.
George Washington’s administration laid the early groundwork for the concept of executive privilege. In 1791, Native Americans defeated U.S. forces in the Battle of the Wabash. Congress demanded to see the documents pertaining to that battle. Washington’s cabinet vigorously debated whether or not the law required them to hand over the documents, and they unanimously decided that it did not. While Washington eventually turned over documents of the embarrassing defeat to Congress, he and his cabinet set an early precedent for idea of executive privilege.
Later, in 1796, George Washington refused to give the House of Representatives documents pertaining to the Jay Treaty with Great Britain. Washington did provide the documents to the Senate since they have the power to ratify treaties, but he decided against providing those same documents to the house. So, while this isn’t what we think of as executive privilege today, it continued to lay the the groundwork for the use of executive privilege.
Origin of the term
In 1954, President Dwight D. Eisenhower coined the term when he denied Senator Joe McCarthy information and refused to let his aides testify. Ever since, presidents and other members of the executive branch have been citing executive privilege to withhold information from the other two branches of government and the public.
Eisenhower not only coined the term, but his administration used it some 44 times.
Executive Privilege in the Watergate Scandal
Richard Nixon infamously used executive privilege to shield his administration from inquiry during the Watergate scandal. The issue made it to the Supreme Court in the United States v Nixon. Leon Jaworski, the special prosecutor conducting the Watergate investigation, subpoenaed Nixon for the taped conversations and other documents pertaining to conversations he had with those who had been indicted by the grand jury. Eventually, the fight ended up in the Supreme Court, which ruled unanimously in favor of the United States, stating that there was “sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment.” While the court rejected “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” it did uphold the right to executive privilege itself; this was the first time that the Supreme Court had weighed in on the issue.
Executive privilege in the modern presidency
Every modern president has used it at one time or another. Clinton holds the record for a modern president, using it 14 times, while Obama and George H.W. Bush only used it one time, respectively. George W. Bush invoked it six times, while Reagan invoked it three times; Trump has yet to invoke it, although his Attorney General Jeff Sessions has preemptively reserved the right of the president to invoke it.
Preemptive executive privilege?
On Tuesday, June 14th, Attorney General Jeff Sessions testified before the U.S. Senate Intelligence Committee to discuss why he recused himself from the federal investigation into Russian interference in the 2016 general election and the firing of former FBI Director James Comey. Sessions refused to answer questions by stating that “it would be inappropriate…to answer and reveal private conversations with the president when he has not had a full opportunity to review the questions and to make a decision on whether or not to approve such an answer.”
So, in other words, Sessions is withholding his answers to defer to the president, giving Trump the option of declaring their conversations to fall under the purview of executive privilege.
While Sessions’ preemption is unheard of, we will have to wait and see how it plays out. Regardless, executive privilege will remain a mechanism that keeps presidents from disclosing the business of the White House, and, sometimes, shields the administration from prosecution or censure.