Old Documents Show George Washington & Trump Would Have Agreed on Executive Privilege
Would our first president have agreed with our 45th on the issue of executive privilege?
Newly released documents — made public by the Trump administration to support its decision not to comply with congressional subpoenas on material and testimony from the executive branch unless the courts compel their cooperation — suggest the answer is yes.
A series of internal memos released by the Justice Department’s Office of Legal Counsel on Thursday reveal the grounds the administration is using to defy congressional subpoenas.
The memos, according to The Hill, “date as far back as the Nixon administration and supply legal arguments for a broad reading of presidential power in the face of congressional oversight.”
There’s plenty to go over here, obviously, but one interesting document on executive privilege dates from the Reagan administration. Written by then-Assistant Attorney General Ted Olson (later solicitor general under the George W. Bush administration, for those of you who follow these sorts of things), it was titled “History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress.”
Not shockingly, the paper is pretty much what it sounds like. What may shock some people is that, in at least three instances, George Washington also refused to provide information to Congress.
The first came following Gen. Arthur St. Clair’s defeat at the Battle of Wabash in 1791.
In 1792, a congressional committee was set up to investigate the causes of the military defeat at the hands of a confederacy of Native American tribes. The House authorized it “to call for such persons, papers, and records, as may be necessary to assist their inquiries.”
When the committee requested papers from the president regarding St. Clair’s mission, Washington called a meeting of the four members of his Cabinet: Thomas Jefferson, Alexander Hamilton, Edmund Randolph and Henry Knox. (Yes, a four-member Cabinet. I know small-government types like myself are reading that sentence wishfully.)
Jefferson described the conclusions that they reached:
“We had all considered, and were of one mind, first, that the House was an inquest, and therefore might institute inquiries,” he wrote.
“Second, that it might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public: consequently were to exercise a discretion. Fourth, that neither the committees nor House had a right to call on the Head of a Department, who and whose papers were under the President alone; but that the committee should instruct their chairman to move the House to address the President.” [Emphasis Olson’s.]
Washington would end up negotiating a deal with Congress by which papers injurious to the public wouldn’t be released in order to avoid a confrontation, although the Cabinet “agreed in this case, that there was not a paper which might not be properly produced.”
The second incident involved correspondence with the United States minister to France.
“In 1794, the Senate requested by resolution correspondence between the United States Minister to France and the Republic of France, and between the Minister and the State Department. President Washington submitted certain of the correspondence requested, but withheld ‘those particulars which, in my judgment, for public considerations, ought not to be communicated,'” Olson wrote.
In 1796, the House again requested communication from the Washington administration, this time having to do with the Jay Treaty, an agreement which averted war between the United States and Great Britain and clarified issues left after the Treaty of Paris ended the American Revolution.
The treaty was a controversial one because closer ties with Britain weren’t necessarily welcomed among Americans, although it managed to clear Congress.
Washington’s response in the matter is perhaps the first president’s most full-throated defense of executive privilege in such matters.
“The nature of foreign negotiations requires caution; and their success must often depend on secrecy; and even, when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic: for this might have pernicious influence on future negotiations; or produce immediate inconveniences, perhaps danger and mischief, in relation to other Powers,” Washington said.
“The necessity of such caution and secrecy was one cogent reason for vesting the power of making Treaties in the President with the advice and consent of the Senate; the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign Power, would be to establish a dangerous precedent.”
Olson’s paper is a long one which goes through the Reagan administration and pretty much touches on every consequential presidency up to and including Reagan’s (fans of Martin van Buren will be left sadly wanting), but it’s interesting to look at the first president and see what he had to say regarding the power of executive privilege.
No, none of the three examples are exactly apples-to-apples comparisons.
Hardly anything is, given the circumstances. We live in strange days when the impeachment inquiry is a made-for-television event and the subpoenas are at least partially meant to compel appearances for the sake of giving our elected officials an excuse to argue on camera, likely for donor clips.
Given those circumstances, Washington might feel even more strongly about the privileges afforded the position.
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