Trump’s ‘privilege’ claim can’t thwart Jan. 6 inquiry
For four years, Donald Trump’s interpretation of his powers made up in pithiness what it lacked in nuance: “I have an Article II, where I have the right to do whatever I want as president.” Now, having refined his jurisprudential thinking, he proposes an expansive wrinkle: He should have the power, unconditionally and forever, to invoke executive privilege regarding communications — documents and conversations — he had with others while in office, regardless of who seeks access to them, or the reasons for so seeking. His motive in resisting inquiries from the House select committee investigating events that culminated in the Jan. 6 attack on the Capitol is, he says, a selfless one: “defense of the Office of the Presidency.”
The power of executive privilege is not mentioned in the Constitution. Although the first president sometimes withheld
FROM THE RIGHT
Ross Douthat
Star Parker
Jonah Goldberg Armstrong Williams Pat Buchanan
Marc Thiessen George Will information from Congress, a “privilege” to do so was first named and forthrightly asserted (by another general turned president) in mid-20th century. And although the Supreme Court has acknowledged its existence, its nature and scope have not yet been satisfactorily articulated.
There is a common-sensical consensus that presidents while in office need some secrecy to encourage candid advice. And sitting presidents, probably with post-presidencies in mind, have supported some predecessors’ claims.
University of Virginia law professor Saikrishna Bangalore Prakash argues (in “Imperial from the Beginning: The Constitution of the Original Executive”) that although there is no constitutional privilege of presidential privacy, neither is there aconstitutional authority for Congress to demand information. In his “The Living Presidency: An Originalist Argument Against Its Ever-expanding Powers,” Prakash says one purpose for the increasing frequency of executive refusals to comply with congressional demands for information is “stymieing congressional investigations of the executive”: President Dwight D. Eisenhower, who invented the phrase “executive privilege,” did so to thwart Sen. Joseph Mccarthy’s reckless rummaging in his administration.
Courts have been judiciously reluctant to referee tussles between the political — the legislative and executive — branches.
But that reluctance, reflecting a Madisonian assumption, is outdated. Madison assumed (in Federalist 51) that a powerful human constant, ambition, would result in creative tension — and, ideally, equilibrium — between the political branches.
His assumption has been largely nullified by party loyalties: Most members of Congress subordinate their institution’s interests and prerogatives to those of a president from their party.
Given today’s political tribalism, were both houses of Congress controlled by the previous president’s party, there would be no Jan. 6 investigation. And there will barely be one if the judiciary allows Congress to be neutered by an ex-president’s assertion of a “privilege” so sweeping that it even shields Stephen Bannon. His seven months on the president’s staff ended almost 41 months before the events of Jan. 6.
If there is to be a timely and thorough investigation of the Jan. 6 assault, and of Trump’s role before and during it, congressional committees should have what private parties have — standing to seek judicial enforcement of compliance with subpoenas. If we are to “recage the executive lion” (Prakash’s phrase), and encourage Congress to recover its dignity and perform its oversight duties, the judiciary must temper its reluctance to intervene.