Perspective: 'Executive privilege' is a new concept built on a shaky legal foundation
By Aziz Huq Aziz Huq teaches law at the University of Chicago, and is co-author of"How to Save a Constitutional Democracy. May 10 at 10:07 AM President Trump says “executive privilege” prevents the House from seeing the unredacted Mueller report and investigating a number of other subjects.
Start with the constitutional text — or, rather, with the absence of any relevant language in the Constitution giving the president power to withhold documents or to prevent testimony by executive-branch officials. The late Raoul Berger, a leading originalist scholar on executive privilege, called the presidential perquisite a “constitutional myth.” He noted, too, that the president’s Article II obligation “to from time to time give to the Congress information on the State of the Union” has no stated limit. For Berger, it was clear that the president had a primary obligation of disclosure to lawmakers, not a license for reticence.
The Justice Department’s own historical documentation shows that it was not until the populist Andrew Jackson entered the White House that refusals to disclose would be underwritten with nebulous references to “the constitutional powers of the Executive.” Jackson made this sort of claim when Congress tried to investigate his dealings with the Bank of the United States, for example.
But beyond those cases, the executive has generally won. The modern court’s enthusiasm for executive privilege is not surprising. The president’s central role in selecting justices means a high percentage of appointees have had formative experience working for the executive branch — six of nine at the moment. This translates into a general deference among the justices to executive-branch claims. Still, that doesn’t mean executive privilege is written in stone.
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