Updated at 2 p.m. ET on October 3, 2019.
A president, his congressional opponents, foreign leaders, and the U.S. Supreme Court first tangled over executive privilege toward the end of George Washington’s first term. They are almost certainly headed for a collision again in 2019.
In November 1794, John Jay, then the first chief justice of the United States as well as President George Washington’s special envoy, signed the “Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and the United States of America,” known to history as the “Jay Treaty.” The aim was to resolve the remaining disputes between the U.S. and Britain, and the Washington administration got much of what it wanted, including a pledge to withdraw British troops stationed on U.S. soil in the West. The Jeffersonian opposition, however, was ardently pro-French; cozying up to Britain infuriated them. One Jeffersonian wrote, “Damn John Jay! Damn everyone who won’t damn John Jay!! Damn everyone that won’t put lights in his windows and sit up all night damning John Jay!!!”
Despite the outrage, the Federalist-dominated Senate approved the treaty by a two-thirds vote. The House doesn’t vote on treaties, but Jeffersonians in the lower chamber moved to refuse to appropriate funds to implement it. To justify this measure, they demanded that Washington send them the instructions he had given Jay, and other documents from the negotiations. On March 30, 1796, Washington, in a presidential message, asserted that “to admit … 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.”
The House didn’t need the papers for any “purpose under [its] cognizance”; the only possible such purpose, Washington said, would be “that of an impeachment, which the resolution has not expressed.”
Thus, at the very birth of what we today call “executive privilege,” Washington admitted that the privilege might have an exception—the power of impeachment granted to the House by the Constitution. In the years since, presidents and members of Congress have often said that when the House acts as part of an impeachment inquiry, the executive must yield to its demands for information. John Tyler, the first president subjected to a formal impeachment inquiry (which came to nothing), turned over such demanded documents after the House committee pointed out that impeachment required the power to compel “the production of all such papers as may be necessary to prove the charges on which the impeachment is founded.”
James K. Polk, not ordinarily known for his good humor, nonetheless “cheerfully admitted” that
In [an impeachment] case the safety of the Republic would be the supreme law, and the power of the House in the pursuit of this object would penetrate into the most secret recesses of the Executive Department. It could command the attendance of any and every agent of the Government, and compel them to produce all papers, public or private, official or unofficial, and to testify on oath to all facts within their knowledge.
The term executive privilege, meaning the privilege to shield certain testimony and documents from disclosure to courts or congressional investigators, did not come into use until the Eisenhower administration; Richard Nixon was the first and so far only president to assert such a privilege against a formal impeachment inquiry. That attempt, as we all know, ended badly in 1974, when the Supreme Court—including three of his appointees—decided that he must turn over the famous “smoking gun” tape to the U.S. District Court for use in a criminal proceeding against seven members of his White House team who had overseen the Watergate burglary and cover-up:
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
The case was a resounding victory for the rule of law. It was also the death knell for Nixon’s presidency. Within two weeks of turning over the tapes, the 37th president was en route to San Clemente, California, and the 38th, Gerald Ford, had taken the oath.
But United States v. Nixon* centered on the needs of federal courts and criminal defendants, not congressional committees. In that gap, the Trump administration has felt free to take the most extreme executive-privilege position possible in its ongoing battles with the Democratic House. The president, it has asserted, need not turn over any material that the president wishes to withhold.
Begin with President Donald Trump’s tax returns, which federal law requires must be turned over at the request of Congress. Treasury Secretary Steven Mnuchin refused to obey the statute, based on his own judgment that the request lacked “legislative purpose.”
This was the first of nearly a dozen refusals by the administration to provide information that lies far outside the contours of executive privilege as previously asserted. Beyond tax returns, the administration has refused to turn over, or sought to block the release of, documents related to the president’s pre-presidential accountants and bankers, the White House security-clearance process, the decision to add a citizenship question to the 2020 census form (which has since been blocked by the Supreme Court), and the House Judiciary Committee’s inquiry into obstruction of justice. It has blocked testimony by former White House Counsel Don McGahn about Trump’s efforts to derail the special-counsel investigation. It has sought to shield grand-jury testimony heard during the Robert Mueller probe from Congress’s eyes. It has directed Corey Lewandowski, who was never a federal employee, not to discuss his conversations as a private citizen with Trump.
Impeachment strengthens Congress’s hand in these disputes—just ask Presidents Washington, Tyler, or Polk. Still, Congress isn’t in the clear; the Trump administration will likely continue fighting to preserve its privileges, real and imagined. The Harvard law professor Laurence Tribe told me in an email that “the law and history make clear that a formal impeachment inquiry maximizes the willingness of courts to release essential information requested by congressional committees engaged in that inquiry.”
Some weeks ago, drawing on the work of Stephen Vladeck of the University of Texas, I wrote that the Trump administration had apparently decided that the Supreme Court is an annex to the White House, with the duty of granting “emergency” stays against any pesky lower courts that do not bend to the president’s will. Trump clearly thinks the Court will take his side even in an impeachment case. In April, he tweeted: “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court.” Last Thursday, he said, “What these guys are doing–Democrats–are doing to this country is a disgrace and it shouldn’t be allowed. There should be a way of stopping it–maybe legally, through the courts.”
Congress should not wait to see what Trump will do. If it needs testimony or documents, it should go to the high court immediately to enforce its demands. As Michael Gerhardt, a professor at the University of North Carolina School of Law and an expert on impeachment, suggested to me, the Court may find that the subpoenas are a “political question,” which it cannot decide. If so, then at least we will know.
Remember United States v. Nixon? The District Court subpoenaed the tapes on April 18, 1974. When Nixon appealed the subpoena to the D.C. Circuit, the special prosecutor went directly to the Supreme Court, asking for “certiorari before judgment.” The Court granted this extraordinary petition on May 24, and heard oral arguments on July 24. Tapes in hand, the House committee voted on articles of impeachment on July 27. On August 8, Nixon resigned.
In that case, the justices made a special trip back to D.C. from their treasured summer recess. Emergency petitions to the Court this time, if any, would come just as they gather for the October term. There’s no reason these pampered civil servants can’t log a little overtime this fall.