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David Adler: Court’s creation of executive privilege without foundation

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The Supreme Court’s historic rejection in U.S. v. Nixon (1974) — “The Watergate Tapes Case” — of President Richard Nixon’s assertion of an “absolute” and “unreviewable” authority to invoke executive privilege, saved the republic from an unaccountable, autocratic executive and won richly-deserved praise from a grateful citizenry across America.

But the court cut the ground from beneath its landmark ruling with a wounding declaration that the president enjoys a “limited” executive privilege: “The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”

With this decision, the court supplied a legal limb for the assertion of executive privilege, something that was absent from the text of the Constitution, the debates in the Constitutional Convention, various state ratifying conventions, the Federalist Papers and other contemporaneous writings surrounding the adoption of the Constitution. There were, moreover, no precedents in English legal history toward which the framers of the Constitution might have squinted to glean a scintilla of evidence of the existence of executive privilege. And, to be thorough, there was no assertion of executive privilege until 1954.

The Supreme Court first announced the concept of a constitutionally based executive privilege in the Nixon case in 1974. Thus the court created the doctrine in what can only be described as an exercise in judicial activism to enhance presidential power.

The court’s resort to judicial activism was all the more painful because the judiciary lacks authority to create rights or powers, an innovation that is reserved to the sovereign people through the exercise of the Amendatory Clause of the Constitution. The court’s act of usurpation is exacerbated by the weak reasoning on which it rests and the generality of its proclamations, which suggest a constitutional privilege broader than the limited evidentiary privilege with which it was concerned.

To be clear, the court was immediately confronted with President Nixon’s assertion of an absolute executive privilege to withhold from the lower courts, information relevant to the defense of the Watergate burglars. The court emphasized that it was concerned only with Nixon’s refusal to furnish materials necessary a criminal proceeding in which the defendant’s Fifth and Sixth Amendment rights were at stake. Indeed, Chief Justice Warren Burger’s opinion for the court spoke plainly: “We are not here concerned with the balance . . . between the [president’s] confidentiality interest and congressional demands for information.”

Despite the court’s caution that it was deciding only the case before it, the principles it enunciated lend themselves to the invocation of executive privilege by presidents of both parties, Democrats and Republicans alike, who have sought to withhold information from Congress. The opinion has been seized by former presidents — Reagan, Clinton and Obama — and now Trump, who invokes the Nixon case to deny the Jan. 6 House Select Committee materials, records, memos and testimony, that it requires to obtain the truth about who organized, orchestrated and conducted the insurrection. 

The court held that a “presumptive privilege” for confidential communications is “fundamental to the operation of government and inextricably rooted in the separation of powers.” The Nixon ruling elevated executive privilege to a constitutional level for the first time. Before that, executive privilege had been known only as an “evidentiary” or “presumptive” privilege, that is, one similar to a lawyer-client or doctor-patient relationship that must yield to the showing of a greater public need.

The court’s effort to ground executive privilege in the separation of powers was unpersuasive. Separation of powers does not create or grant power; rather, it constitutes a rough division of authority that serves to preserve the Constitution’s enumeration of powers against acts of usurpation. As we have seen, there is neither an enumerated nor implied power of executive privilege in the Constitution. It is obvious, moreover, that in the Aaron Burr treason trial, that Chief Justice John Marshall found no evidence that executive privilege was rooted in the separation of powers. Indeed, he ordered President Thomas Jefferson to produce a letter requested by Burr. Jefferson complied. For his part, Jefferson made no separation of powers objection and he invoked no claim of executive privilege to withhold the letter from the court.

The court’s creation of a constitutionally based power of executive privilege has been asserted to the detriment of the power of Congress to conduct inquires and investigations into potential executive abuses, to discern the truth of events critical to public understanding, to secure public safety and to legislate potential government reform. There is no evidence that the assertion of executive privilege has served the general welfare.

The respect enjoyed by the court is in no small part, derived from its ability to render rulings and write opinions that appeal to reason. But when an opinion is grounded in premises bereft of historical evidence and the customary touchstones of judicial decisions, it is difficult to explain. The assertions of executive privilege has done more harm than good and, in any event, they have denied the citizenry the peace of mind that comes from a satisfying and thorough congressional investigation that yields the truth on which the republic replies.

American history affirms the framers’ understanding that the integrity of government officials, alone, will not afford a sufficient bulwark against the abuse of power. That is why the framers wrote a Constitution, replete with checks and balances. Nothing in law or history suggested to them the wisdom of an executive power to conceal information from Congress. Nothing since — either in law or history — has offered persuasive evidence that the framers were mistaken.

David Adler is president of The Alturas Institute. This "We the People" series is provided by the North Dakota Newspaper Association and Humanities North Dakota.

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Michael Paul Williams — a columnist with the Richmond Times-Dispatch — won the 2021 Pulitzer Prize in Commentary "for penetrating and historically insightful columns that guided Richmond, a former capital of the Confederacy, through the painful and complicated process of dismantling the city's monuments to white supremacy."

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