Executive Privilege

With all the discussion of the impeachment trial, one issue keeps coming up.
Executive privilege.
So what is it? Is it something new under the Trump Administration?
Are the democrats correct in saying the President can’t use it?
Who is telling the truth?
In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government to access information and personnel relating to the executive branch.
The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and derived from the supremacy of the executive branch in its own area of Constitutional activity.
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege.
Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a “sufficient showing” that the “Presidential material” is “essential to the justice of the case” (418 U.S. at 713-14). Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch’s national security concerns.
Dwight Eisenhower, not President Trump, was the first president to use the phrase “executive privilege” after refusing to allow his advisers to testify at a Senate hearing in May 1954. Eisenhower believed that what is said in the White House should stay in the White House.
“Any man who testifies as what he told me won’t be working for me that night,” the president said.
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 U.S. 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 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 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 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 anti-trust 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 to not allow Army officials to testify at hearings led 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 criticized the action as an “iron curtain,” but it was the beginning of the end of his red-scare 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 vice president, Richard Nixon, who changed that perception once he became president.
In 1973 Nixon invoked executive privilege to try stop a congressional order to release secret White House recordings that had 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 U.S. 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 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 Watergate Prosecutor Archibald Cox.
“Nixon went too far when he claimed executive privilege in an attempt to conceal evidence of White House wrongdoing,” said George Mason University’s Rozell. “His actions had the consequence of giving executive privilege a bad name.”
The Nixon precedent also turned out to be bad news for President Bill Clinton, who invoked executive privilege 14 times during the investigation by independent counsel Kenneth Starr.
In 1988, a federal judge ruled that Clinton couldn’t use the action to block questioning of his aides about his relationship with White House intern Monica Lewinsky.
Since then, 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 the “Fast and Furious” program to track guns. A negotiated settlement was reached in court, 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.
So, historically, presidents have exercised executive privilege in two types of cases: those that involve national security and those that involve executive branch communications.
The courts have ruled that presidents can also exercise executive privilege in cases involving ongoing investigations by law enforcement or during deliberations involving disclosure or discovery in civil litigation involving the federal government.
Just as Congress must prove it has the right to investigate, the executive branch must prove it has a valid reason to withhold information.
While there have been efforts in Congress to pass laws clearly defining executive privilege and setting guidelines for its use, no such legislation has ever passed and none is likely to do so in the future.
Presidents most often claim executive privilege to protect sensitive military or diplomatic information, which if disclosed, could place the security of the United States at risk. Given the president’s constitutional power as commander and chief of the U.S. Military, this “state secrets” claim of executive privilege is rarely challenged.

Most conversations between presidents and their top aides and advisers are transcribed or electronically recorded. Presidents have contended that executive privilege secrecy should be extended to the records of some of those conversations.
The presidents argue that in order for their advisers to be open and candid in giving advice, and to present all possible ideas, they must feel safe that the discussions will remain confidential. This application of executive privilege, while rare, is always controversial and often challenged.
In the 1974 Supreme Court case of United States v. Nixon, the Court acknowledged “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.”
The Court went on to state that “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.”
While the Court thus conceded the need for confidentiality in discussions between presidents and their advisers, it ruled that the right of presidents to keep those discussions secret under a claim of executive privilege was not absolute, and could be overturned by a judge.
In the Court’s majority opinion, Chief Justice Warren Burger wrote, “[n]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”
The ruling reaffirmed decisions from earlier Supreme Court cases, including Marbury v. Madison, establishing that the U.S. court system is the final decider of constitutional questions and that no person, not even the president of the United States, is above the law.
While Dwight D. Eisenhower was the first president to actually use the phrase “executive privilege,” every president since George Washington has exercised some form of the power.
As I stated earlier, in 1792, Congress demanded information from President Washington regarding a failed U.S. military expedition. Along with records about the operation, Congress called members of the White House staff to appear and deliver sworn testimony.
With the advice and consent of his Cabinet, Washington decided that, as the chief executive, he had the authority to withhold information from Congress. Although he eventually decided to cooperate with Congress, Washington built the foundation for future use of executive privilege.
Indeed, George Washington set the proper and now recognized standard for using executive privilege: Presidential secrecy must be exercised only when it serves the public interest. Bottom line, the real problem is the separation of powers in our government.
Josh Blackman a constitutional‐law professor at the South Texas College of Law in Houston, and a member of the CATO Institute recently wrote an article asking the question, “Is Trump actually restoring the Separation of Powers?
Our Constitution carefully separates the legislative, executive, and judicial powers into three separate branches of government: Congress enacts laws, which the president enforces and the courts review.
However, when all of these powers are accumulated “in the same hands,” James Madison warned in Federalist No. 47, the government “may justly be pronounced the very definition of tyranny.”
The rise of the administrative state over the last century has pushed us closer and closer to the brink. Today, Congress enacts vague laws, the executive branch increases unbounded discretion, and the courts defer to those dictates.
For decades, presidents of both parties have celebrated this ongoing distortion of our constitutional order because it promotes their agenda. The Trump administration, however, is now disrupting this status quo.
In a series of significant speeches at the Federalist Society’s national convention, the president’s lawyers have begun to articulate a framework for restoring the separation of powers:
First, Congress should cease delegating its legislative power to the executive branch; second, the executive branch will stop using informal “guidance documents” that deprive people of the due process of law without fair notice; and third, courts should stop rubber‐stamping diktats that lack the force of law.
Executive power is often described as a one‐way ratchet: Each president, Democrat or Republican, augments the authority his predecessor expanded.
These three planks of the Trump approach to separation of powers — delegation, due process, and deference — are remarkable, because they do the exact opposite by ratcheting down the president’s authority.
If Congress passes more precise statues, the president has less discretion. If federal agencies comply with the cumbersome regulatory process, the president has less latitude.
If judges become more engaged and scrutinize federal regulations, the president receives less discretion.
Each of these actions would weaken the White House but strengthen the rule of law. To the extent that President Trump follows through with this platform, he can accomplish what few thought possible: The unending creep of the administrative monster can be slowed down, if not forced into retreat.
Don McGahn, who serves as White House counsel, recently stated the fact that Congress gives the White House too much power. “Often Congress punts the difficulty of lawmaking to the executive branch,” he said, “then the judiciary concedes away the judicial power of the Constitution by deferring to agency’s interpretation of what Congress meant.”
One would think that a lawyer for the president would love this abdication by Congress and the courts. But no. Instead, McGahn praised a recent concurring opinion by Justice Thomas, in which Thomas “called for the non‐delegation doctrine to be meaningfully enforced” to prevent the “unconstitutional transfer of legislative authority to the administrative state.”
Again, reflect on the fact that if Justice Thomas’s position were adopted, much of Congress’s legislation — which carelessly lobs power to the White House with only the vaguest guidelines — would no longer pass constitutional muster.
The truth is, there is no need to rely on the Supreme Court to enforce the non‐delegation doctrine. The president has the power to veto half‐baked legislation. (Recall what Speaker Nancy Pelosi said of Obamacare: “We have to pass the bill so you can find out what is in it.”)
If Trump returned a bill to Congress, stating in his message that it failed to include sufficient guidelines, there would be a paradigm shift in Washington, D.C. Both Republicans and Democrats would have to go back to the drawing board and relearn how to legislate with more precision.
This process would strengthen the rule of law. Or Congress could simply override the veto and reaffirm that it has shirked its constitutional responsibility and could not care less about what this president, or any president for that matter, actually does.

The problems of the administrative state extend far beyond Congress’s delegations. “The Trump vision of regulatory reform,” he said, “can be summed up in three simple principles: due process, fair notice, and individual liberty.”
Generally, when an administrative agency wants to affect a person’s liberty or property, it must go through a fairly complicated and cumbersome process that seeks public input.
However, in recent decades, administrations of both parties have sought to bypass this process through the use of so‐called “sub‐regulatory actions.”
By issuing memoranda, guidance documents, FAQs, and even blog posts, agencies have avoided the need to formalize their rules. Yet they still expect Americans to comply with these documents or face ruinous fines or even litigation.
In particular, during the Obama administration, the Department of Education used “Dear Colleague” letters to deprive students of due process on college campuses. McGahn called these missives “Orwellian.” And he’s right. In September, Betsy DeVos, the secretary of education, rightfully rescinded these guidance documents, announcing that “the era of rule by letter is over.”
More recently, in another speech at the Federalist Society meeting, former Attorney General Jeff Sessions announced that his agency would cease issuing guidance documents that effect a change in the law.
Under the leadership of Associate Attorney General Rachel Brand, who also spoke at the convention, the Justice Department will review existing guidance documents and propose modifying or even rescinding some. “This Department of Justice,” Brand said, “will not use guidance documents to circumvent the rulemaking process, and we will proactively work to rescind existing guidance documents that go too far.”
This is a remarkable position, as it retroactively and prospectively constrains the ability of the Justice Department to expand its own authority.
In Federalist No. 51, James Madison wrote of the “great difficulty” in framing a government: “you must first enable the government to control the governed; and in the next place oblige it to control itself.” I couldn’t agree more.