History, History Column

Executive Privilege and Impeachment

Copyright ©2019 Sarah Becker

Written by ©2019 Sarah Becker

Executive Privilege and Impeachment

“The President of the United States is impeachable at any time during his continuance in office,” James Madison wrote (Federalist Paper No. 39).  The 2019 calendar is turning and still the country contemplates President Donald Trump’s (R-NY/FL) conduct in office.  “If impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, [the President will be] removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”  Last October the U.S. House of Representatives, Democrats especially voted to further its impeachment inquiry.

“The legislative, executive, and judiciary departments ought to be separate and distinct,” Alexander Hamilton concluded.  “Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations….”  Power: the ability or capacity to perform effectively; to control.

  President Donald Trump and, in turn, the Executive branch have repeatedly refused to respond to Congressional subpoenas; requests for information related to the un-redacted Robert Mueller report, citizenship and the 2020 census, Ukraine and an acknowledged Executive quid pro quo.  Quid pro quo: thing given as compensation; return made for a gift or favor.  Trump’s failure to reply to the latter may result in obstruction of Congress charges.

Executive privilege is an implied power, “derived from the concept of ‘process privilege.’”  It allows the president and other high officials of the Executive branch to keep “sensitive” communications private should the disclosure of such prove disruptive to the Executive branch.  Executive privilege was not legally explained until 1974—United States v. Richard M. Nixon—and mostly applies to matters of foreign policy, national security, and or national defense.     

President George Washington first exerted his Executive prerogative in 1795.  President Dwight D. Eisenhower declared the prerogative a privilege in the 1950s, during Wisconsin Senator Joseph McCarthy’s “Red-hunter” era; the famous McCarthy-Army hearings.

“Any man who testifies as to the advice he gave me won’t be working for me that night,” President Eisenhower scowled.  Eisenhower, the supreme commander of Allied forces in Europe during World War II, and or his Administration invoked Executive privilege a total of 44 times.

“Only by consistently and forcefully resisting Congressional incursions can Executive prerogatives [privileges] be preserved,” Assistant Attorney General, now Attorney General William P. Barr wrote in 1989.  Barr highlighted “ten types of legislative provisions commonly included in proposed legislation that weaken the Presidency.”  By type: No. 4 Micromanagement of the Executive Branch especially foreign affairs; No. 5 Attempts to Gain Access to Sensitive Executive Branch Information; No. 6 Concurrent Reporting Requirements, and No. 9 Attempts to Restrict the President’s Foreign Affairs Powers.

“The term Executive privilege is a 20th century thing,” Kevin C. Butterfield, Executive Director of George Washington’s Presidential Library wrote. “Congress asked President George Washington for information regarding Arthur St. Clair’s devastating 1791 defeat, and he gave Congress every scrap there was.”  General St. Clair’s attempt to construct forts in the Ohio region was violently opposed.

“I Take the liberty of Communicating to your Excellency The disagreeable News of our defeat,” William Drake wrote President Washington on November 10, 1791.  “We Left fort Washington the Begining of Septr, a Jornel of our march to the place of Action & the whole proseedings on our march I hoped to have had the Honour to inclose to you but that and all other papers, Cloathing & ca was Taken by the [Ohio] Indians.”

“Washington was later asked for information about the Jay Treaty negotiations, and he refused to give material to the House of Representatives,” Butterfield continued.  The debate dates back to incidents involving not only President George Washington (1795), but also President Thomas Jefferson, U.S. Supreme Court Chief Justice John Marshall, and conspirator Aaron Burr (United States v. Burr 1807).

“I have considered your…request…to lay before your House, a copy of the instructions to the Minister of the United States, who negociated the treaty with the king of Great Britain, together with the correspondence and other documents relative to that treaty, excepting such of the said papers, as any existing negociation may render improper to be disclosed,” President Washington wrote the U.S. House of Representatives on March 30, 1796.

“No part of my conduct has ever indicated a disposition to withhold any information, which the constitution has enjoined upon the President, as a duty, to give, or which could be required of him by either House of Congress, as a right,” Washington continued.  “And with truth, I affirm, that it has been, as it will continue to be, while I have the honor to preside in the government, my constant endeavor to harmonize with the other branches thereof.”

“The nature of foreign negociations requires caution,” Washington explained, “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 deemed impolitic; for this might have a pernicious influence on future negociations, or produce immediate inconveniences, perhaps danger and mischief, in relation to the other powers.  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…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 negociation with a foreign power, would be, to establish a dangerous precedent.”

“It does not occur, that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed,” Washington concluded.  “In fact, all the papers affecting the negociation with Great Britain were laid before the Senate.”

“Much of the trouble that Senator Joe McCarthy got into arose from his rejection of the concept of Executive privilege,” Washington Post columnist George E. Sokolsky wrote in 1959.  “True, ours is a tripartite form of government and each branch is independent of the other, except as the Constitution provides checks of one upon the other.  Still lawyers whom I have queried could provide me with no law concerning Executive privilege.  That said, the money power is vested in Congress [and] foreign aid is an expenditure…There can be no Executive privilege concerning the expenditure of public money.”

The notion that Executive privilege applies to foreign aid, the expenditures related to “is based on the ancient dictatorial philosophy that the people should be satisfied with whatever their rulers deem they should have,” Soloksky concluded.  “If we American citizens ever agree to such a bureaucratic philosophy in Washington, then we dig the grave for the free American government.”

President Trump’s 2019 Ukranian Executive quid pro quo is connected not only to foreign aid but also the ongoing House impeachment inquiry.   On October 25, 2019, Chief U.S. District Judge Beryl A. Howell issued a 75-page opinion which states the U.S. House of Representatives “was legally engaged in a judicial process that exempts Congress from normal grand jury secrecy rules.”

  Judge Howell dismissed arguments by committee Republicans that the House must first vote to authorize an impeachment inquiry, calling the notion politically appealing but legally fatally flawed.  “Even in cases of presidential impeachment, a House resolution has never, in fact, been required to begin an impeachment inquiry,” Howell said.  Yet Speaker of the House Nancy Pelosi (D-CA) called for a Halloween vote.  Her constitutional concern as of mid-November: bribery.

President Trump seemingly is of a type.  In 2016, prior to his Presidential inauguration, Trump settled a now defunct Trump University lawsuit.  On November 4, 2019, a federal appeals panel said “that President Trump’s accounting firm must turn over eight years of his personal and corporate tax returns to Manhattan prosecutors, a setback for the president’s attempt to keep his financial records private.”  Also in November: A judge ordered Trump to pay $2 million “to an array of charities as a fine for misusing his own charitable foundation to further his political and business interests.”  And, as per the Mueller Report, former Trump campaign adviser Roger Stone was found guilty of seven counts of lying, witness tampering, and obstruction.

The U.S. Supreme Court, United States v. Richard M. Nixon (1974), decided that “absent a need to protect military, diplomatic, or sensitive national security secrets,” the President’s “generalized interest in confidentiality” [executive privilege] was outweighed by the “demonstrated, specific need for evidence in a pending criminal investigation.”

The House of Representatives took its impeachment hearings public on November 13.  Will formal charges, Articles of Impeachment follow?  Only time will tell, including the integrity of the ongoing impeachment process.


Columnist’s Notes: In November the U.S. Supreme Court decided that the families of the Sandy Hook shooting victims can sue gun manufacturer Remington.  In addition a federal judge prohibited a Texas based company from publishing gun blueprints, distributing 3D blueprints online.  On November 14, in Santa Clarita, California a 16 year-old student shot and killed two of his Saugus High School classmates; injured three others.  It was 2019’s 85th school gun violence incident.  (Let’s Not Be Scared, Let’s Be Prepared Crier Nov/2019) 

Sarah Becker started writing for The Economist while a graduate student in England. Similar publications followed. She joined the Crier in 1996 while serving on the Alexandria Convention and Visitors Association Board. Her interest in antiquities began as a World Bank hire, with Indonesia’s need to generate hard currency. Balinese history, i.e. tourism provided the means. The New York Times describes Becker’s book, Off Your Duffs & Up the Assets, as “a blueprint for thousands of nonprofit managers.” A former museum director, SLAM’s saving grace Sarah received Alexandria’s Salute to Women Award in 2007.  Email: abitofhistory53@gmail.com

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