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‘Executive privilege’ is a myth, not a defense

Richard Nixon tried to use executive privilege to withhold the White House tapes, but the Supreme Court ruled on July 24, 1974 that the tapes were not protected from a congressional inquiry, Photo: AP)
Richard Nixon tried to use executive privilege to withhold the White House tapes, but the Supreme Court ruled on July 24, 1974 that the tapes were not protected from a congressional inquiry, Photo: AP)
“Executive privilege” — presidential concealment of sensitive documents — has a past almost as old as the Constitution itself.



At some point in the first presidency, George Washington confronted a public outcry over a military disaster in the near Northwest, attended by congressional demands for sensitive papers. Washington turned for advice to his secretary of state, Thomas Jefferson, who in youth had been trained in Williamsburg by some of the best lawyers and knew his Anglo-American constitutional usages. Jefferson responded that Congress is the “grand inquest of the nation” (a good term to bear in mind now) and that the executive should, in principle, satisfy congressional needs. But he added that Washington could “exercise a discretion.”


Washington yielded up the documents.


That is the deep background to the congressional determination to see the Mueller report in its undoctored fullness. We already know that in the special counsel’s view, Attorney General William Barr has distorted it.


The Washington-Jefferson precedent might now be forgotten, but for the Eisenhower administration’s resurrection of “executive privilege” in the 1950s. It was prompted by the raids of Sen. Joe McCarthy and his minions on executive departments and agencies — even the Bureau of Standards and US Information Agency libraries. The McCarthyite excuse for reckless harassment was, as usual, a bogus hunt for alleged subversives. It was in this hectic climate that a possibly inflated doctrine of executive confidentiality was born — or reborn. The basic idea was to protect the presidency and its personnel from frivolous disruption — as captained by Trump’s mouthpiece Roy Cohn. The rationale was that presidents should be entitled to fearless confidential advice.


Amid the present clamor in the House branch of “the grand inquest,” its leader has declared a “constitutional crisis,” possibly a slight exaggeration. The House is considering citing Barr for civil contempt, he having refused to testify on the excuse that the House committee was planning to hire lawyers to question him. Donald Trump is suspected of being terrified that a fully divulged Mueller report would be embarrassing and possibly incriminating.


The next phase of combat may be judicial. It is familiar history that Richard Nixon, in the Watergate affair of the 1970s, appealed to the Supreme Court to avoid disclosure of his White House tapes. He was blanked, as they say in baseball shutouts, 8 to 0. The Court explained that a supposed “privilege” to hide presidential misbehavior is untenable in a system of accountable government. And so it remains, whether or not such a “privilege” is real or imaginary under Article Three of the Constitution and the doctrine of separated powers.


The scholar Raoul Berger, its most articulate assailant, pinned the right label on executive privilege when he labeled it a “constitutional myth.” The term is exact, since executive privilege enjoys a merely imaginary status (lacking specific mention or definition) but is arguably of importance. But unlike the explicit privilege against self-incrimination in the Fifth Amendment, it is based on assumption rather than fact.


You needn’t be a subtle student of constitutional lore to see that the White House invocation of this ghostly doctrine to hide the Mueller report from the public and its representatives, meanwhile spinning its text, is a travesty of sound government.
Nixon’s tapes, though fatally incriminating, were not the product of a costly inquiry into the attempted subversion of a presidential election — than which no findings could be of more vital self-interest to American voters. When you add that Trump and his rubber-stamp AG are invoking a dubious doctrine in their effort to sit on the result, the claim is downright absurd — even in fancy constitutional dress.


Contributing columnist Edwin M. Yoder Jr. of Chapel Hill is retired following a career as a writer and editor in Washington.


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