George Washington’s St. Clair Precedent: The Executive Privilege Waiver Example We Forgot

Most people hear the phrase "executive privilege" and immediately picture a president refusing to give Congress something. That reflex is understandable. Modern fights are almost always about refusal. But the first major executive privilege moment in American history was not about refusing anything. It was about a president choosing to waive a power his own cabinet told him he had.

A Disaster No One Could Ignore

In the fall of 1791, Major General Arthur St. Clair led a federal army into the Northwest Territory. St. Clair was governor of that territory and a veteran of the Revolutionary War, but none of that prepared his force for what happened on November 4 near the Wabash River. His troops walked into an ambush led by Little Turtle, Blue Jacket, and a confederation of Miami, Shawnee, and Delaware warriors.

The result was a catastrophe. More than 600 American soldiers were killed, and hundreds more were wounded. It remains one of the worst defeats the United States Army has ever suffered. The nation was stunned. Citizens wanted to know how a federal expedition could be destroyed so completely.

Congress responded the way a republican legislature should. The House of Representatives opened the first major congressional investigation into the executive branch under the new Constitution. It requested the original letters, orders, and papers connected to St. Clair's expedition.

That created an immediate problem. President George Washington had never faced a formal demand for executive papers. The Constitution does not mention executive privilege by name. There was no established rule about whether the chief executive could withhold information from Congress. The question had to be worked out from first principles.

A Cabinet Meets and Sets a Standard

Washington did not wing it. He called his cabinet together in the spring of 1792. The four men were Secretary of State Thomas Jefferson, Secretary of the Treasury Alexander Hamilton, Secretary of War Henry Knox, and Attorney General Edmund Randolph. Together they considered whether the president should release the St. Clair documents.

The cabinet reached a principle that would shape the presidency. Jefferson recorded the conclusion. The president ought to communicate such papers as the public good would permit, and ought to refuse only those documents whose disclosure would injure the public.

Notice what that does. It recognized that the president has real discretion. The power to withhold exists. A commander in chief can mark certain communications as confidential when candor and the national interest require it. But the cabinet also saw no reason to invoke that power in the St. Clair case.

Washington agreed. He turned the documents over. That was not surrender. It was a deliberate waiver, a conscious decision not to assert a power the president and his cabinet believed the Constitution gave him. Washington chose disclosure not because he lacked the authority to withhold, but because the public interest favored letting Congress see the record.

Privilege Is a Trust, Not a Trophy

That distinction is the heart of the matter. Executive privilege is not the president's personal property. It is an institutional power held in trust for the American people. It exists to protect the effectiveness of the executive branch, especially the ability of a president to receive candid advice from subordinates. If every sensitive conversation can be dragged into public view on a political whim, advisers will stop saying what they actually think.

Washington's standard makes a waiver an act of constitutional judgment rather than political convenience. He did not hide behind the privilege merely because he had the power to do so. He weighed the public good and concluded that congressional accountability mattered more in that moment than executive secrecy. The documents would help Congress understand a military disaster. The Republic needed that clarity. So he released them.

That is the only defensible standard for a waiver. A president may waive executive privilege when the public good permits it. He may not waive it to damage a predecessor, to assist a partisan investigation, or to make himself look transparent while exposing someone else. The purpose of the power is not the president's advantage. It is the health of the Republic.

The Modern Temptation

Modern practice has drifted far from the Washington standard. Executive privilege is often treated as a political toggle. An incumbent president may casually waive a predecessor's privilege while fiercely asserting his own. The result is that a power designed to protect the presidency as an institution becomes a partisan weapon.

That is destructive in two ways. First, it undermines the candor that effective executive decision-making requires. If a president believes that a future president of the other party may one day waive his privilege and publish his private deliberations, every adviser in the room will trim and posture. The executive branch becomes less competent, not more accountable. The visible benefit of a politically convenient waiver is immediate, but the hidden cost is the slow erosion of honest counsel.

Second, it weakens the separation of powers. A privilege that can be switched on and off for political purposes is no longer a constitutional shield. It is a cudgel. As Madison wrote in Federalist 51, "Ambition must be made to counteract ambition." Each branch needs its constitutional tools to resist encroachment by the others. But those tools have to be exercised according to principle, not party. Once they become instruments of political retribution, they stop protecting republican government.

What Washington Would Ask Today

What would Washington's example require now? It would require a president who considers waiving executive privilege to ask a single question before signing anything: Does disclosure serve the public good, or does it serve my political interest?

If the answer is the second one, the waiver should not happen. That is not because presidents should always withhold information. It is because the power belongs to the office, not to the man occupying it. A president who waives privilege to settle a score is not being transparent. He is spending an institutional asset for personal gain. He may call it accountability, but it is really the executive branch cannibalizing itself for short-term advantage.

The Constitution places the president in a unique position. He is not above the law, but he is also not a private citizen who may dispose of executive powers however he likes. He holds those powers as a trustee. Washington understood that from the beginning. That is why he could waive privilege in the St. Clair affair without weakening the presidency. He did it because the public good permitted it, and for no other reason.

The Lesson That Outlasts the Argument

The first executive privilege waiver in American history is still the standard by which every later waiver should be judged. George Washington did not invent a right to hide. He recognized a power to withhold, and he chose not to use it when the public interest favored disclosure.

The distinction is not complicated. A statesman asks what the Republic requires. A partisan asks what his side can gain. The presidency was built for the former. The St. Clair precedent reminds us that executive privilege, including the decision to waive it, is legitimate only when it serves the public good rather than the president's convenience.

That lesson is older than most of the people who argue about it now. It is also more relevant than ever.