Executive Privilege: When the Founders' Judgment Was Betrayed

There is a principle at stake every time a president of either party refuses to turn over documents or allow testimony from his advisers. That principle is accountability. And the doctrine being used to block it, executive privilege, has been stretched so far beyond its original purpose that it now threatens the very separation of powers it was meant to protect. Let me be clear from the outset: executive privilege is real. It is necessary. A president and his senior advisers must be able to speak candidly, to debate options vigorously, and to receive unvarnished advice without every word ending up in a congressional hearing or on the front page of the Washington Post. That is the legitimate core of the doctrine. But what began as a narrow, practical shield to protect the functioning of the executive branch has become a sweeping sword used to evade oversight, hide misconduct, and frustrate the constitutional role of Congress. And the Founders? They would not recognize what we have today.

The Original Understanding: George Washington's Precedent

The first invocation of executive privilege came in 1792, and it set a pattern that modern presidents have abandoned. Congress was investigating the disastrous defeat of General Arthur St. Clair's expedition against Native American tribes in the Ohio Country. Over 600 American soldiers had been killed, and the House wanted papers from the executive branch to understand what went wrong. President George Washington did not simply refuse. He convened his cabinet, which included Thomas Jefferson, Alexander Hamilton, Henry Knox, and Edmund Randolph, and they debated the request. The result was a careful, principled response. Washington agreed to provide the documents to Congress, but he reserved the right to withhold any material that would harm the public interest if disclosed. He did not claim blanket secrecy. He did not assert an absolute prerogative to hide anything he chose. He negotiated with Congress, recognized its legitimate oversight function, and only asserted confidentiality where he could articulate a specific, concrete harm. That is the original understanding: executive privilege is a limited, implied power, rooted in the separation of powers, designed to protect the institution of the presidency, not the personal or political interests of the man occupying the office.

The Constitutional Foundation: Not in the Text

It is worth noting that the phrase executive privilege appears nowhere in the Constitution. The document enumerates the powers of the president: he is commander in chief, he grants pardons, he makes treaties with the advice and consent of the Senate, he appoints officers, he takes care that the laws be faithfully executed. There is no clause that says the president may withhold information from Congress at his discretion. The privilege is implied from the structure of separated powers. The logic is sound: if Congress could demand every internal deliberation of the executive branch, it could paralyze the president's ability to do his job. But implied powers are not unlimited. As Chief Justice John Marshall wrote in McCulloch v. Maryland, should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal to say that such an act was not the law of the land. The same principle applies to the executive branch. A privilege implied from the Constitution cannot be used to accomplish objects not entrusted to the presidency.

The Nixon Watershed: The Supreme Court Draws a Line

For nearly two centuries, executive privilege was rarely invoked and never seriously litigated. That changed with Richard Nixon. In the midst of the Watergate scandal, Special Prosecutor Leon Jaworski subpoenaed tape recordings of conversations between Nixon and his advisers. Nixon refused, claiming an absolute, unreviewable executive privilege that extended to any conversation he chose to protect. The Supreme Court, in United States v. Nixon in 1974, rejected that claim unanimously. Chief Justice Warren Burger, a Nixon appointee, wrote that the privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. But he also held that it is a qualified privilege, not absolute. When the privilege conflicts with the fair administration of criminal justice, the latter must prevail. The tapes were turned over. That was the right outcome. The Court preserved the legitimate core of the privilege while rejecting the imperial claim that a president could simply declare himself above the law. But the case also had an unintended effect: it formalized and constitutionalized a doctrine that had previously been handled through political negotiation and comity between the branches. Once the Supreme Court recognized a constitutional basis for executive privilege, presidents of both parties began treating it as a cudgel rather than a shield.

The Post-Nixon Expansion: From Shield to Sword

Since Nixon, every president has pushed the boundaries further. Consider a few examples. Bill Clinton invoked executive privilege repeatedly during the Whitewater and Lewinsky investigations. His administration claimed privilege over conversations with aides about how to respond to questions from the press and Congress, not about core executive functions like national security or law enforcement, but about public relations strategy. When a federal judge rejected the claim, the White House appealed. Eventually, the privilege was largely upheld for direct communications but not for conversations that had been shared with third parties or that involved potential criminal conduct. George W. Bush asserted a particularly broad view of executive privilege, especially regarding the firing of U.S. attorneys and the deliberations of the Energy Task Force led by Vice President Dick Cheney. The administration argued that even the identities of participants in task force meetings were protected by executive privilege. The courts ultimately allowed some discovery but largely deferred to the executive's claims. Barack Obama famously claimed executive privilege over documents related to the Fast and Furious operation, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed guns to walk into Mexico. Attorney General Eric Holder was held in contempt of Congress after the privilege claim was invoked. The administration argued that internal deliberations about how to respond to congressional inquiries were privileged, a claim that, if accepted, would allow any president to block oversight by simply declaring any discussion of the controversy deliberative. Donald Trump asserted executive privilege broadly during the first impeachment proceedings, directing administration officials not to testify and refusing to turn over documents. His administration also claimed privilege over testimony from former White House counsel Don McGahn, a claim that was ultimately rejected by the courts. Joe Biden has continued the pattern, invoking executive privilege to block the release of audio recordings of his interviews with Special Counsel Robert Hur. The Department of Justice argued that releasing the recordings would chill future cooperation with investigations, an argument that again treats the privilege as a tool for the president's personal protection rather than the functioning of the office. The pattern is consistent. Each administration expands the privilege a little further. Each argues that a new category of information, such as public relations strategy, responses to Congress, or personal financial dealings, falls within its protection. Each sets a precedent that the next administration will build upon. And the cumulative effect is a doctrine that has drifted far from its moorings.

The Forgotten Half of the Equation: Congress's Role

Here is the angle that rarely gets discussed. In the original understanding, executive privilege was not a unilateral power. It was a negotiated accommodation between coequal branches. The president could assert confidentiality, Congress could push back, and the two would work out a compromise that respected both the need for candid advice and the need for oversight. That process has broken down. Today, presidents simply assert privilege and dare Congress to sue. And because litigation is slow, costly, and uncertain, Congress often backs down. The result is a de facto expansion of executive power that the Founders would have found alarming. James Madison, in Federalist No. 51, wrote that the separate and distinct exercise of the different powers of government requires that each department should have a will of its own, and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. In other words, each branch must be able to defend itself against encroachments from the others. If Congress cannot obtain the information it needs to conduct oversight, it cannot defend its constitutional role. And when Congress cannot oversee, the president becomes accountable to no one until the next election.

A Principled Test: The Washington Standard

How do we restore the proper balance? The answer lies in the original understanding, illustrated by Washington's handling of the St. Clair investigation. The privilege should only cover core constitutional functions: national security, foreign affairs, military operations, and law enforcement decision-making. These are areas where candid advice is genuinely essential to the functioning of the executive branch. It should also cover genuine deliberation, the predecisional process of weighing options, not postdecision conversations about how to defend or cover up the decision. The privilege should not cover personal misconduct or private business dealings, campaign activities or political strategy, communications with third parties outside the executive branch, or postdecisional efforts to manage public relations or respond to investigations. If a document or testimony relates to the president's personal or political behavior, the privilege simply does not apply. The purpose of the privilege is to protect the office, not the man. That is not a radical idea; it is what the Founders assumed.

The Madisonian Warning

There is a deeper danger here that conservatives, in particular, should heed. Many of my fellow conservatives have reflexively defended expansive claims of executive privilege when made by a Republican president, only to decry them when made by a Democrat. That is not principle; it is partisanship. The Constitution does not change based on which party holds the White House. The separation of powers does not wax and wane with electoral outcomes. If we believe in limited government, and I do deeply, then we must believe in limited government even at the top. An expansive executive privilege is a threat to liberty regardless of who wields it. As Madison wrote in Federalist No. 47, the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Executive privilege, when properly confined, is a tool for the president to do his job. When improperly expanded, it is a tool for the president to escape accountability. And an unaccountable executive, however elected, is a step toward the tyranny the Founders feared.

The Human Stakes

This matters for every American. When presidents hide information behind a wall of privilege, they deprive the people's representatives of the facts needed to hold the executive accountable. When the executive is unaccountable, liberty is at risk. The next abuse may not involve documents at all. It may involve the president directing his administration to ignore a law, to spend money Congress never appropriated, or to target political opponents. And without oversight, who would stop him? We have seen glimpses of this in recent years. The expansion of executive privilege is part of a broader trend toward an imperial presidency, a trend that has accelerated under presidents of both parties. The cure is not a different president; it is a return to constitutional first principles. Narrow the privilege. Restore the balance. Recognize that the presidency is an office of limited, enumerated powers, not a throne. That is the constitutional way. And it is the only way to preserve the republic the Founders gave us.