The Myth of 'Executive Privilege'


Bush Administration officials have announced that President Bush will use a claim of "Executive Privilege" to thwart congressional investigation into the firings of several U.S. attorneys. This claim is the latest in a long series of unconstitutional invocations of the notion of Executive Privilege by presidents prominent and obscure.

In fact, Executive Privilege is itself a myth unfounded in the language or original understanding of the Constitution. The Constitution was not supposed to give presidents power to withhold information from Congress.

When a president invokes Executive Privilege, he is saying that despite a congressional request for information, or even despite a congressional subpoena, he is not going to let Congress learn what it wants to know. He, in other words, knows better than Congress what matters Congress should investigate.

At root of the error behind this line of thinking is the idea that the president is a competing policy maker with Congress, that the two political branches in some cases may have competing views of policy and that the Executive is then entitled to thwart the fact-finding efforts of the Legislative Branch.

This idea is entirely mistaken. The Executive Branch was intended by the Constitution's authors and ratifiers to be precisely that – the executor of policies made by Congress, not a competing power center empowered to thwart Congress's attempts to gain information.

If the Executive can simply refuse to allow Executive Branch personnel to testify before Congress and refuse to pursue congressional contempt referrals, Congress will be altogether unable to perform its legislative functions. It will be subordinate to the Presidency in the way that Parliament was subordinate to English kings before the establishment of Parliament's unlimited power to investigate in the 17th century.

All of the information-gathering agencies of the federal government, the FBI and CIA, the NIH and Department of Agriculture, the Department of Energy and the Bureau of the Census, fall under the Executive Branch. Can it really be up to the president's discretion whether government employees assigned the task of performing research of various kinds must divulge information to Congress?

Of course, it is not information resulting from research activities that is at stake in the matter of the firings of U.S. attorneys, but information that may be politically damaging to the Bush Administration. Yet, Congress's right and need to gather information about possibly improper behavior by Executive Branch officials are even more pressing than its need for those other types of information.

And we know that the draftsmen and ratifiers of the Constitution intended for Congress to be able to call on Executive Branch officials for information at will. In the Philadelphia Convention that drafted the Constitution, the Committee of Detail referred to Congress as the "Grand Inquest of the Nation" – a title used in England at that time to refer to Parliament as the untrammeled investigatory body empowered to impeach misbehaving officers of the Crown.

Since Congress has the power to impeach, it must be able to root out all wrongdoing in the Executive, and without having the Executive decide which trails of possible wrongdoing Congress may investigate. One thought that this principle of the Executive's duty to obey the other branches' valid requests for information, wherever they lead, had been established in U.S. v. Nixon (1974).

The first Congress, full of framers and ratifiers of the Constitution, passed legislation requiring the treasury secretary to provide Congress with information "respecting all matters referred to him by the House of Representatives, or which shall appertain to his office." Rep. Elias Boudinot had noted that, "this power is essentially necessary to the Government … it is absolutely so." No one argued to the contrary.

Secretary Alexander Hamilton, a framer, drafted that bill, and he advised President George Washington, also a framer, to sign it. Which he did.

It is true that there were a few instances in the early history of the United States in which presidents refused to supply Congress with information. For the most part, however, the idea of Executive Privilege, like the term itself, is a post-World War II innovation. And certainly no administration has made so sweeping a claim of Executive Privilege as is currently being made by the Bush Administration.

The Legislative Branch is, as James Madison noted, the leading branch in a republican government. It is up to Congress to decide on behalf of the American people what information it needs, what questions Executive officials must answer.

Refusal to comply with valid congressional requests for information is an impeachable offense on the part of any Executive officer who makes the refusal. Before it comes to that, however, Congress can sidestep the administration's announcement that it will not allow U.S. attorneys to enforce violations of legally valid congressional subpoenas by resuscitating the congressional power to hold individual citizens in contempt.

The issues at stake in this matter are far more significant than the firing of a few U.S. attorneys, or even the fates of the Democratic congressional majority and the Bush Administration. What is at issue is whether Congress will defend itself against a grave threat to its basic power to investigate matters clearly within its legislative cognizance.

August 3, 2007