A reader wrote to ask us about Executive Privilege. We hear about it a lot. It’s the privilege a president asserts. But weren’t we founded on the concept that the leader is NOT privileged? Not above the law? Not royal. In fact, the Continental Congress had a hard time trying to figure out what to name the leader. Certainly not king or emperor! They struggled to find the least significant title they could think of. How about “president”? That’s just someone who “presides” over the government, not who controls it! In those days, “president” was practically an insult, suggesting impotence. Just ceremonial.
A further example of the president’s position is clear in the Constitution. The president doesn’t come first. The PEOPLE come first—in the Preamble—It’s “We The People” who are preeminent, not the lord-king. In fact, the president is not even in the beginning of the text of the Constitution. Congress comes first—in Article One. There are ten full sections explaining how important Congress is. Then, oh yeah, let’s mention the president, in Article Two—with just four sections.
The first section is just about how to choose a president, not about presidential power.
The second section is about being Commander-in-Chief of the military, but remember that only Congress may wage war, set out in the First Article. Then, further in the second section, the president may make treaties—but only if two-thirds of the Senate give their permission. The president also needs the approval of the Senate to appoint ambassadors, ministers, judges, and officials—and for a second time in the same sentence, the Constitution notes that it’s only with the approval of the Senate.
The third section is about how the president must report to Congress—and recommend laws for their consideration. That’s even less powerful than asking approval. They only have to “consider” what he or she asks for.
Then, there’s the fourth section—which is all about how to get rid of a president. Period. That’s how strongly the Founders felt that the president should be, well, insignificant.
How on earth did we get to a point where the president is seen as a sort of god? Now, we have “Signing Statements,” in which a president basically rewrites a law and what it means, at signing. “Executive Orders” are magically appearing laws unto themselves. And then, there’s “Executive Privilege,” in which a president asserts that he or she is above the law, altogether. Privileged. As Richard Nixon said, “If the president does it, it’s not illegal.”
Where did this crazy concept come from?? The Miller Center has a good exploration of it. Originally, even the Cabinet was not seen as being “under” the president.
Washington’s reliance on department heads for advice, similar to his war council during the Revolution, set a precedent for including the cabinet as part of the President’s office.
And since Washington was so well respected, he began the movement toward presidential power.
Moreover, because Congress did not challenge his appointments or his removal of appointees, principally out of respect for him, the tradition was planted to allow the President to choose his or her own cabinet.
The power of the presidency only exists because it has not been challenged. He even meddled in the makeup of the Supreme Court. Shouldn’t the court choose its own Chief Justice??
When John Jay resigned as chief justice of the Supreme Court, Washington selected his successor from outside the bench, disregarding seniority and thus allowing future Presidents to draw from a diverse pool of talent beyond the Court’s aging incumbents.
Again, the Court could have said “no.” Since it did not, the president now may put his or her buddy onto the court, and even make him or her the Chief Justice, as George Bush put a relatively young man above Justices with decades of experience. And, again, Washington installed a frivolous power that should have been challenged.
When the House of Representatives sought records related to negotiations surrounding the Jay Treaty of 1795, Washington refused to deliver all the documents. In doing so, he set the precedent for invoking what became known as executive privilege.
The Founders would have been turning in their graves if they were not still alive then! And that is the problem with having too much respect for the person of the president.
The power of the president waned over the years, with Congress again asserting the preeminence intended by the Founders. It was Grover Cleveland who claimed more power, and it was allowed because it was not challenged.
But it was not until Dwight Eisenhower that Executive Privilege became prominent again, and in fact, he gave the concept its name. Note again that nowhere in the Constitution does a president have any such legitimate right or power. Presidents have used it simply because Congress and the Courts did not stand up for their own authority. Once established, Ike used it a record 44 times.
The original concept of Executive Privilege was to protect advisors, who need to speak freely and give a president their honest opinion. It was meant to be like lawyer-client privilege—and no more. As Richard Nixon stated during the Watergate investigations, “the problem I confronted was this: Unless a President can protect the privacy of the advice he gets, he cannot get the advice he needs..”
However, even that understanding of Executive Privilege was eventually dashed by the Supreme Court, which demanded the release of audiotapes that gave the public Nixon’s actual words, voice, (and profanity). Once again, the president was seen as a fellow citizen, not a king, emperor, or god.
The Founders intended a democracy that was fashioned by the Congress, with the Congress also being in control of war and any other major foreign issue. Over the years, the person of the president has stolen that power. Even as late as Lyndon Johnson, the president had to go to Congress to ask for permission to wage war. Stupidly, Congress made the wording of the Gulf of Tonkin resolution so vague that Johnson and Nixon (primarily) waged wars all over Southeast Asia, without going back to Congress. And now, today, a president feels the right to commit acts of war anywhere in the entire world, thanks to Congress’ once again abdicating its right and duty to control foreign affairs — recognizing a war on “terror,” a nebulous notion that can never be “defeated,” even after an estimated six trillion dollars.
And now, today, we have an imperial presidency precisely because nobody stopped the slippery slope in that direction.