January 18, 2018

The History and Purpose of ‘Executive Privilege’

By Matthew A. McIntosh / 01.17.2018
Editor-in-Chief, Brewminate


In recent response to a subpoena to appear before the House Intelligence Committee, former Trump campaign “chief executive” and President Trump’s “senior adviser” (a new position given equal status to the chief of staff), invoked “executive privilege” in response to questions.  Though members of the committee, including Trey Gowdy (R – South Carolina), expressed outrage that Bannon would not answer questions, he said the Trump administration had informed him not to speak of his time during the transition or while he was in the White House.

Bannon did agree to answer Robert Mueller’s questions per his subpoena because executive privilege applies only to the other two branches of government, not a special counsel.  During questioning by the committee, Bannon did reveal some details.  He said that he spoke to two White House officials, Chief of Staff Reince Priebus and Press Secretary Sean Spicer, and a legal spokesman about the meetings between Donald Trump Jr. and two Russian lobbyists in June 2016.

Presidents invoking executive privilege when answering subpoenas is nothing new, but each time many are unfamiliar with it and the history of its use.

What Is Executive Privilege?

Let’s look to Black’s Law Dictionary for a legal definition:

Constitutional right to not disclose information, given to the government’s executive branch. Typically used to cover national defense and foreign policy. Protects sensitive information under the constitutional doctrine of separation of powers.

At first glance, a casual reader familiar with the constitution would know that it contains nothing giving the president executive privilege nor does it provide the authority for or method by which Congress or the judicial branch may obtain any information they seek.

The Supreme Court’s rulings establish constitutional interpretation and law, and it was via such a ruling that the concept of executive privilege became the law of the land in 1974 when Richard Nixon invoked it in response to requests for testimony and information.  They ruled 8-0, with Rehnquist recusing, in favor of Nixon, officially establishing a constitutional right for the president to invoke executive privilege pursuant to the doctrine of the separation of powers.

The History of Executive Privilege

As with most early American law and the constitution itself, much is rooted in English common law, that being the law with which our founders were most familiar and which has served as a model for many of our own laws even to today.

The royals in England were given “crown privilege”, which continues today as “public-interest immunity”.  This protects members of the royal family from the British equivalent of subpoenas for testimony and information.

The earliest invocation of executive privilege traces to our very first president, George Washington.  In 1794, the Jay Treaty – designed by Alexander Hamilton and negotiated by John Jay – was submitted to the Senate and ratified the following year.  This treaty with Great Britain sought the removal of British forces from the Northwest Territory, the immediate halt of prosecutions for those accused of treason and wartime crimes, and increased trade between the United States and British territories.

France was deeply insulted by this treaty they saw as undoing provisions in the Treaty of Paris, and it received a hostile reception among many Americans and especially Thomas Jefferson and the Jeffersonians.  Adding to France’s insult was their own alliance with this new nation, indeed their vital role in gaining our independence at Yorktown  While fighting the Treaty in the House, those against it requested information related to the negotiation of the treaty.  President Washington held that the Senate alone has the power to ratify treaties and that the House had no just claim to any information.  Washington’s refusal to comply with the House request was successful.

Ironically, it would be President Thomas Jefferson who would next attempt to invoke the privilege.  Aaron Burr was being tried for treason in 1809, and he requested that Jefferson’s testimony and letters to him from Jefferson be subpoenaed.  Jefferson was in an unfortunate position as one of his strongest opponents, John Marshall, was the Supreme Court’s chief justice at the time.  Jefferson was successful in not testifying but did comply with a subpoena for the letters.

In 1833, Henry Clay demanded that President Andrew Jackson reveal the content of discussions with his cabinet regarding issues surrounding the Second Bank of the United States, and Jackson invoked executive privilege.

It would be 115 years after Jackson before a president again invoked executive privilege, in 1948, during the Hiss-Chambers case.  President Harry Truman ordered a number of security files be moved to the White House and instructed members of the executive that they were not to discuss details of the files with anyone or answer questions regarding them.

During the “Red Scare” in 1954 (the Army-McCarthy hearings), Sen. Joseph McCarthy sought to compel testimony and the release of information of conversations between and communications among White House staffers.  President Eisenhower invoked executive privilege in response to any all such subpoenas.

Every president since Ronald Reagan has invoked executive privilege.  President Reagan cited executive privilege three times, George H.W. Bush once, Bill Clinton fourteen times, George W. Bush six times, and Barack Obama twice.

In June 2017, Dan Coats and Jeff Sessions refused to answer Congressional questions about conversations between them and Candidate/President-Elect/President Trump.  Though Trump did not claim executive privilege during their testimony, leaving them free to answer questions, they chose not to do so and instead said they wanted to give him a chance to invoke the privilege if he chose to do so first.

It wasn’t until yesterday when Steve Bannon was questioned by the House Intelligence Committee that the Trump Administration unofficially invoked executive privilege with instructions to Bannon not to answer questions.  The term “unofficially” is used here because they admit conversations were had but deny they specifically told Bannon they were using executive privilege.

All of the invocations of executive privilege in the past have basically followed the same line of thinking, especially following the Supreme Court’s 1974 ruling.

There is, however, a new question arising from this particular non-invocation invocation.  The White House instructed Bannon not to answer any questions relating to Trump’s time in transition.  He was told he could only answer questions about the campaign.

There is one and only one executive at a time in this country.  An executive in transition is an executive in transition, not an executive.  Only President Obama would be able to cite executive privilege during that time.

As Congressional hearings and investigations move forward, there may well be a new Supreme Court challenge to the president’s power to invoke executive privilege and perhaps a new ruling specifying whether or not a current president can do so inclusive of her/his time campaigning and in transition.