Flashpoint of executive privilege
WASHINGTON — There’s no mention of executive privilege in the Constitution. Nor was it discussed at the Constitutional Convention, when delegates gathered in Philadelphia in 1787 to draft the country’s bedrock governing principles.
But executive privilege — the president’s right to keep some communications and records secret — has been part of nearly every presidency since George Washington tried to withhold documents from Congress regarding a failed military expedition against Native American tribes.
Washington lost that battle with Congress, but the concept has endured and expanded, providing a reliable flashpoint for political controversies and scandals ever since.
President Donald Trump has not invoked executive privilege to keep his current and former aides from answering questions to Congress about Russian meddling in the 2016 presidential campaign. But the issue emerged in full glare last week when Steve Bannon, Trump’s former strategic adviser, stonewalled the House intelligence committee during a 10-hour-long, closed-door hearing by saying the White House had strictly limited what he could say.
Another House hearing scheduled for Friday with Hope Hicks, the White House communications director and one of Trump’s closest confidantes, was indefinitely postponed after it became clear she might follow Bannon’s lead and refuse to answer lawmakers’ questions.
“I wasn’t surprised” about the postponement, said Rep. Tom Rooney, RFla., given the committee’s struggles with Bannon.
Bannon clammed up about the presidential transition, his seven months in the White House and his conversations with Trump after he was fired in August — a gaping timeline that frustrated Democrats and Republicans. He didn’t open up even when the panel took the unusual step of issuing him a subpoena during the hearing.
Rep. Adam Schiff of California, the top Democrat on the intelligence committee, said Bannon refused to answer questions because “somehow this was covered by a potential claim of executive privilege down the road,” a stance he called “breathtaking” in its scope.
“If the White House is permitted to maintain that kind of a gag rule on the witness, no congressional investigation would ever be effective,” Schiff said.
Bannon’s position grew more puzzling the next day when Rick Dearborn, the White House deputy chief of staff, fully cooperated with the same House committee in closed-door testimony.
Executive privilege also didn’t come up last July when Trump’s son-in-law and senior adviser, Jared Kushner, testified to a Senate panel.
The inconsistent approach has frustrated Democrats. Rep. Eric Swalwell, D-Calif., a member of the House intelligence committee, said the White House has hinted at executive privilege to deflect questions without actually claiming it.
“It’s like being pregnant,” he said. “It is or it isn’t. You can’t have a third category.”
Jonathan Turley, a professor at George Washington Law School, doubts Congress will take the next step of holding Bannon in contempt if he continues to refuse to answer questions. “The Congress has tolerated this type of misuse of executive privilege,” he said. “It would be a curious thing if they actually enforced the principle of congressional integrity and constitutional law.”
There were no consequences for Attorney General Jeff Sessions when he deployed a similar approach to avoid Senate Judiciary Committee questions last June, and again in November, about Russia and his conversations with Trump.
Although the president hadn’t invoked executive privilege, Sessions said, “I am protecting the right of the president to exert it if he chooses.”
The Supreme Court has never ruled on executive privilege in congressional inquiries. But it has set clear limits for criminal investigations.