We can all agree that it’s ridiculous for Steve Bannon to dodge testifying before the House committee investigating January 6 with a claim of executive privilege. Bannon left the Trump White House more than three years before the events under investigation. Also, the committee wants to find out about President Donald Trump’s role in a violent insurrection against the U.S. government. And anyway, Trump isn’t president anymore. If Bannon wants to claim executive privilege, the man he needs to see probably is President Joe Biden. The committee is expected, when it meets Tuesday, to hold Bannon in contempt of Congress.
But just as the corruption of the Trump administration merely accelerated a malign drift the Republican Party had followed for decades, so, too, Bannon’s claim of executive privilege furthers, more recklessly, a long-term concentration of ever greater power in the Oval Office. The Trump administration wasn’t the first to abuse executive privilege. It merely turned that abuse to self-parody. In drawing attention to the doctrine’s mischievous elasticity, Bannon may even be doing us a favor.
Executive privilege is so hallowed a legal concept that you’d think it originated in English common law and is embedded in the Constitution. Actually, it was dreamed up by President Dwight Eisenhower, who wasn’t even a lawyer, during the Army-McCarthy hearings to bar testimony about a White House meeting on how to silence a certain red-baiting demagogue from Wisconsin. Eisenhower was probably practicing his golf swing when the idea came to him.
“Because it is essential to efficient and effective administration,” Ike wrote Defense Secretary Charles “Engine Charlie” Wilson in a May 1954 letter,
that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters, and because it is not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed, you will instruct employees of your Department that in all their appearances [at the Army-McCarthy hearings] they are not to testify to any such conversations or communications or to produce any such documents or reproductions.
Translation: Stonewall Tail Gunner Joe. University of Iowa law professor Gerald Wetlaufer would later observe that this novel legal doctrine arose not from Eisenhower administration lawyers, who recommended a more routine separation-of-powers claim, but from Eisenhower’s own experience as an Army general, which taught him that loose lips sank ships.
The phrase executive privilege, by which Ike’s improvisation became known, was coined three years later, making it only slightly older than myself. In his 1974 book, Executive Privilege: A Constitutional Myth, Harvard law professor Raoul Berger attributed the coinage to George Cochran Doub, Eisenhower’s assistant attorney general for the civil division. Doub spliced the word executive to the word privilege to fend off a lawsuit brought against the federal government by the Kaiser Aluminum Chemical Corporation. Kaiser alleged breach of contract in connection with the company’s purchase of three war production plants. To prove that Uncle Sam ripped the company off, Kaiser sought certain government documents. But Doub’s neologism prevailed; the court said no. Strangely, when Doub died in October 1981, his New York Times obituary neglected to mention that he invented executive privilege.
Executive privilege acquired legitimacy as a constitutional doctrine with the Supreme Court’s 1974 ruling in United States v. Nixon. This decision heartened liberals by compelling President Richard Nixon to turn secretly recorded Oval Office tapes over to the Watergate prosecutor and to seven Watergate defendants. The tapes established Nixon’s participation in the Watergate cover-up and led quickly to his resignation. More broadly, U.S. v. Nixon established that no president is above the law:
When a claim of presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice.
This language plainly contradicted Nixon’s subsequent bogus claim to interviewer David Frost that “when the president does it, that means that it is not illegal,” and Trump’s more recent claim that “I have an Article II [of the Constitution] where I have the right to do whatever I want as president. But I don’t even talk about that.” (Click here for a video roll showing Trump repeating this boast in multiple settings, including the part where he says he never talks about it.) U.S. v. Nixon established that such maximalist claims of presidential power were a dangerous fantasy. It’s still the law of the land.
But even as U.S. v. Nixon hemmed in executive privilege, it established for the first time that executive privilege was a thing. Nixon, who was vice president during the Eisenhower administration, framed his separation-of-powers argument borrowing the confidentiality principle that Ike had pulled out of thin air and to which George Cochran Doub had given a name. The court rejected Nixon’s argument, but it didn’t reject Eisenhower’s amateur jurisprudence. It said no to “absolute executive privilege” but yes to “executive privilege,” inviting subsequent efforts to expand it.
The first of these was a case brought by Nixon himself, Nixon v. Administrator of General Services (1977). The Supreme Court upheld the 1974 law handing Nixon’s papers over to the General Services Administration and said these papers could be used in judicial proceedings. But it also said Nixon retained certain ill-defined rights over the documents based on executive privilege. To enjoy executive privilege, the court said, you didn’t have to be president. You could be an ex-president. Later, in Cheney v. District Court (2004), the Supreme Court affirmed that to enjoy executive privilege you needn’t ever have worked for the government. That ruling let Vice President Dick Cheney keep secret which energy company officials attended meetings of his energy policy task force and what they said.
United States v. Nixon established that the courts, not the president, would map the boundaries of executive privilege. But after Nixon v. GSA, the courts were reluctant to go there. What they mostly did instead was tell Congress and the president to work out individual disputes between themselves. That’s what the D.C. district court did, for instance, when Anne Gorsuch Burford, President Ronald Reagan’s administrator for the Environmental Protection Agency, refused to give Congress documents that it had reason to believe would demonstrate her indifferent enforcement of hazardous waste laws. In that instance, the Reagan White House backed down after it came out that Burford had withheld cleanup funds for a toxic waste dump near Los Angeles to impede Democratic Governor Jerry Brown’s unsuccessful 1982 Senate campaign. Amid the resulting furor, Burford resigned, bequeathing her outsize conception of executive power to her son, Supreme Court Justice Neil Gorsuch.
Over time, though, presidents—especially Republican ones—grew bolder when directed by the courts to negotiate executive privilege compromises with Congress. These disputes concerned documents in the executive branch’s possession and testimony by subordinates whom the president could in most instances fire. That gave presidents the upper hand, especially as they came to understand that Congress really didn’t want to send uncooperative government officials to jail (and that even if they did, it would be up to the Justice Department, over which the president had some control, to prosecute witnesses ruled in contempt of Congress). Presidents also became increasingly aware that claims of executive privilege could delay congressional and judicial inquiries past the time when anybody would give a damn. Litigation is long, and life is short.
Democratic presidents used executive privilege mostly to fend off chickenshit partisan congressional investigations like the one into the Obama administration’s bungled Fast and Furious operation. (In that instance, a judge said no.) Republican presidents used executive privilege with genuine conviction, at least on the part of their lawyers, because of a legal theory of “the unitary executive” developed by Federalist Society fanatics. This doctrine, first embraced by the Reagan administration, gave the president absolute power over executive branch agencies, including even independent agencies, thereby discouraging congressional meddling. (It was also a handy tool to tamp down federal regulation, but that’s a tale for another day.) “There’s no history to support this,” Victoria Nourse, a Georgetown professor of constitutional law, told me. The Supreme Court didn’t buy it, either, but Justice Antonin Scalia’s dissent in Morrison v. Olsen (1988), a case challenging the independent counsel statute that grew out of the Burford scandal, became a foundational text to the unitary cult.
“It is not for us to determine,” Scalia wrote, “how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.” As the Supreme Court drifts rightward, it becomes ever more sympathetic to this monarchical conceit. (Congressional Republicans, of course, forget all about the unitary executive when the president is a Democrat. Exhibit A is the House’s nakedly partisan investigation of the 2012 attack on the U.S. Embassy in Benghazi, Libya, which took four long years to exonerate the presumptive Democratic presidential nominee, Hillary Clinton, of I forget what.)
The convergence of unitary-executive theory with proliferating executive privilege claims has created an imperial presidency far worse than anything Arthur Schlesinger imagined in his 1973 book of that name (which, in restrospect, was published at the nadir, not the peak, of the trend). Executive branch stonewalling created a fistful of informal precedents and Office of Legal Counsel memos that stretch executive privilege well beyond anything Eisenhower had in mind when he was trying to get Joseph McCarthy off his back. The Trump administration then stretched it even further with blanket claims of executive privilege regarding any and all deliberations. It twice used executive privilege claims, among others, to stonewall Senate trials for impeachment. The Trump White House claimed executive privilege for onetime Trump campaign manager Corey Lewandowski, whom even Trump recognized as way too sketchy to bring into his administration, regarding conversations Lewandowski had not only with the president but also with assorted people who weren’t the president. Do you have a cousin who was once in an elevator with somebody who knows Donald Trump’s dentist? Go ahead and claim executive privilege.
Now Steve Bannon is claiming executive privilege to protect deliberations with his former boss about how to prevent Congress from ratifying a presidential election that the former boss lost. The House committee will hold Bannon in contempt. Then Bannon will dare Joe Biden’s Justice Department to prosecute. If past practice is any guide, DOJ will blink, and Bannon will walk free. But Merrick Garland’s Justice department has the opportunity to follow a different path. If the crimes of Donald Trump don’t prompt Americans finally to call bullshit on executive privilege, nothing ever will.
