10 November—Tanya Chutkan, a United States District judge in the District of Columbia, has just told Donald Trump that he and his ass-kissing cronies can’t use the doctrine of executive privilege to conceal all their evil deeds. Bravissimo, though it’s no surprise. So here’s a brief history of executive privilege in the United States to bore you:
First, executive privilege—the right of the president and other members of the executive branch to maintain confidential communications under certain circumstances and to resist certain subpoenas and oversight by the legislative and judicial branches of government—isn’t mentioned at all in the Constitution. But the Supreme Court has ruled that executive privilege derives from the separation of powers, which, while that doctrine also isn’t specifically mentioned in the Constitution, is clearly implied in several articles and amendments.
SCOTUS generally tends to come down for executive transparency. But it can always change its mind. Most litigation over executive privilege is negotiated and settled anyway. And, lest we forget, cracking executive privilege usually is for political rather than legal or altruistic reasons, despite what the pols may claim.
The first president to invoke executive privilege was George Washington. Of course. He and his cabinet used it twice: first, in 1792, to keep the House of Representatives from discovering details about a disastrous military loss to Indians (a.k.a. Native Americans); second, to essentially keep the details of the Jay Treaty between the United States and Great Britain secret, if you can believe it. Washington relented in both cases, but, as in so many things, set the precedent. For better or worse. And that was before it was called executive privilege.
In 1807, Thomas Jefferson tried to avoid testifying at his former vice president Aaron Burr’s trial for treason. Jefferson had in fact had Burr arrested. Chief Justice John Marshall, who presided at the trial in Richmond, Virginia, ruled that the President was subject to the same laws as everyone else. Jefferson didn’t testify, but he did “voluntarily” provide documents sought by Burr’s lawyers. Burr, who was Tapping Reeve’s brother-in-law and student (as if anybody cares), was acquitted.
Andrew Jackson told the Senate where to get off in 1833 when it wanted to see a list of financial advisors. The Senate censured him, but Jackson never gave up the list.
Grover Cleveland refused to give Congress documents relevant to presidential appointments in 1885. And Theodore Roosevelt refused to give the Senate documents about antitrust prosecution of U.S. Steel. “The only way the Senate or the committee can get those papers now is through my impeachment,” he insisted. He didn’t produce and it didn’t impeach. Well, the House had to charge first.
In 1954, Dwight Eisenhower told Sen. Joe McCarthy and his red-baiting committee, “I will not allow people around me to be subpoenaed.” Eisenhower used executive privilege 44 times. And McCarthy fell. Deservedly so. The term “executive privilege” came to be used during the Eisenhower administration, by the way.
Richard Nixon invoked executive privilege in 1973 to cover his ass in the scandalous Watergate screw-up, but in 1974 SCOTUS ruled that it couldn’t be used to withhold material sought for a criminal proceeding.
Ronald Reagan invoked executive privilege three times.
Willy Clinton misused executive privilege 14 times in 1998 (about Monica Lewinsky, of course), but was told where to go by SCOTUS.
George Bush Jr. (a.k.a. Bush 43) copped executive privilege six times and Barack Obama took seven years to negotiate a settlement about the Fast and Furious fiasco.
As for Trump, we can only hope that he and his horde of culpable sycophants are forced—by SCOTUS, if necessary—to turn over every single incriminating document generated in his disgusting lifetime . . .