Executive Privilege and Impeachment

George Washington invented the concept and was quite clear that it did not apply to impeachment proceedings.

Legal scholars Jean Galbraith and Michel Paradis document rather extensively that, in the very action that created the concept of “executive privilege” in American law, President George Washington and his advisors explicitly excluded its application to an impeachment inquiry.

President George Washington’s decision to withhold diplomatic papers from the House of Representatives with respect to the Jay Treaty has become an important precedent in current debates over executive privilege. […] Washington clearly signaled that executive privilege would not be available if the House were pursuing an impeachment inquiry. In withholding the papers, he wrote that, “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 [requesting the papers] has not expressed.”

They cite several internal documents from the same period demonstrating that Secretary of State Timothy Pickering, Treasury Secretary Oliver Wolcott, Secretary of War James McHenry, Attorney General Charles Lee and even Alexander Hamilton (at that point, a private citizen) all believed that the only circumstances under which the President was obligated to share the internal deliberations of government in negotiating the treaty—as opposed to the finished product itself—to the House of Representatives was pursuant to an impeachment inquiry.

Galbraith and Paradis also note that,

It bears emphasizing that this mulling over the possibility of impeachment was not theoretical. The Jay Treaty was a controversy that roiled the new Republic. It created a rift that would never close between James Madison and Washington. There had been popular outcry that Washington was a traitor or at best senile. And some had spoken openly of impeachment. This backdrop makes the unity of opinion regarding the House’s entitlement to documents in an impeachment proceeding all the more impressive.

Now, the musings of Washington and his top advisors in 1796 aren’t dispositive. There has been the passage of 225 years and all manner of precedent, including rulings by the United States Supreme Court. Still, these declarations carry a certain gravitas.

Oddly, as the Findlaw summary makes clear, this question has not been settled by the courts. With respect to demands for documents in judicial proceedings, the courts have long held to a principle of presumptive but not absolute immunity. But, in disputes between the Executive and Legislative branches, the courts have largely punted, treating the matter as a political question to be resolved via the political process.

As a non-lawyer, I would argue that the President has an absolute right to refuse to release Executive branch documents—and certainly those pertaining to his own communications and decisions—to the Congress, even in the case of impeachment. This isn’t because the President is a king but simply because, practically speaking, no one has the power to make the President do otherwise. As with other Presidential malfeasance, the remedy is impeachment. Refusal to turn over documents subpoenaed by an impeachment inquiry strikes me as prima facie obstruction of justice, an impeachable offense.

FILED UNDER: Congress, Donald Trump, Impeachment, Law and the Courts, Supreme Court, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Refusal to turn over documents subpoenaed by an impeachment inquiry strikes me as prima facie obstruction of justice, an impeachable offense.

    Yep And as I am sure you know, the 3rd Article of Impeachment that the House Judiciary Committee approved against President Nixon involved his refusal to comply with Judiciary Committee subpoenas related to the impeachment inquiry.

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  2. SC_Birdflyte says:

    I’m more interested in the outcome of Baghdad Bill’s efforts to find a criminal offense in the FBI’s investigation of Trump. If fate gives the Dems control of the White House and both houses of Congress in the near future, legislation that establishes some clear legal criteria for use of executive privilege should be on the docket.

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  3. Gustopher says:

    As a non-lawyer, I would argue that the President has an absolute right to refuse to release Executive branch documents—and certainly those pertaining to his own communications and decisions—to the Congress, even in the case of impeachment. This isn’t because the President is a king but simply because, practically speaking, no one has the power to make the President do otherwise. As with other Presidential malfeasance, the remedy is impeachment.

    So, less of a presidential right, and more of an impeachable offense that is seldom enforced?

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  4. steve says:

    “Refusal to turn over documents subpoenaed by an impeachment inquiry strikes me as prima facie obstruction of justice, an impeachable offense.”

    Yes, but it also means that the opposition has an out when it comes to voting in the Senate. They can claim that because they have not seen evidence they dont need to vote against the POTUS from their own party. Suppose Nixon’s tapes had never been released?

    Steve

  5. As a non-lawyer, I would argue that the President has an absolute right to refuse to release Executive branch documents—and certainly those pertaining to his own communications and decisions—to the Congress, even in the case of impeachment. This isn’t because the President is a king but simply because, practically speaking, no one has the power to make the President do otherwise.

    Not to get too caught up in semantics, but what you describe is not a “right” but rather an issue of power (or lack thereof).

    To call is a “right” gives it a positive normative veneer that it does not deserve, especially if, as you note, it could ultimately be impeachable.

  6. James Joyner says:

    @steve: @Steven L. Taylor: Yes, that’s fair. I do think the limits of executive privilege is ultimately the President’s determination.

    Still, even though he went to extraordinary lengths to maintain power, Richard Nixon almost instantly understood that a 9-0 ruling from the Supreme Court meant that he had no choice but to release the tapes. In the modern context—even with a normal President—I’m not sure a 5-4 decision by SCOTUS would be enough.

    In the context of a standoff with Congress, it’s been viewed, probably correctly, as non-justiciable. So, the question is whether the violation is sufficiently egregious to provoke impeachment. That determination almost certainly goes beyond the specific standoff in question to include the overall relationship between a given President and House and the political mood of the country.

  7. Sleeping Dog says:

    Given the specificity of opinions of Washington and others who would be considered, Founders, that impeachment overrides claims of executive privilege, it will be difficult for the orginalists on the SC to rule in Tiny’s favor add to that the unanimous ruling against Nixon and you would pretty much have the definition of a political decision by the SC

  8. steve says:

    Suppose a court rules the executive branch needs to release information and the executive branch refuses. I dont really see any means of enforcement. In some idealized world this results in impeachment I guess, but it won’t. A president won’t be impeached because they personally harm someone. It will be borne out in documents and recordings. If the executive branch won’t release that information then Senators have cover and will not vote against their POTUS. Our system is flawed.

    Steve

  9. Jax says:

    @steve: In a way, I guess it’s good that it’s being pointed out how flawed our system is. If we make it out of this intact, I sincerely hope there’s some beefing up of the checks and balances where the flaws exist in the years to come.

    The founders, bless their hearts, probably never imagined a President like DJT, nor a Senate so willing to plant their lips so firmly on a reality tv star/pretend billionaire’s ass in order to retain power, nor a concept like Citizen’s United….or the internet, 24 hour news coverage, information in an instant, true or false.

  10. gVOR08 says:

    @Jax: The Founders faced a vicious political press and feared the ignorant “mob”. But they didn’t envision anything like the modern RW propaganda industry and the 1/3 or so of the electorate solidly in it’s sway.

  11. TheLounsbury says:

    Yes, that’s fair. I do think the limits of executive privilege is ultimately the President’s determination.

    What a very queer point of view. Even the the Monarch could not simply tell Parliament to sod off. Unlimited privilege as set, defined and asserted by the very office it benefits is nothing more than opening the path to a Sulla in the medium term, and from Sulla to worse.

    That is more than a route to constitutional failure, it rather is a painfully myopic thinking. That your executive office traditions are trapped between your legalism and the older unwritten norms tradition of the mother tradition is already showing to be a currrent error in your system.