Marsha Blackburn’s defense of Trump is flawed
Partisanship was at a fever pitch. The House of Representatives was at the president’s throat demanding documents he didn’t want to produce. Constitutional questions were at hand.
It sounds familiar, but the drama referred to here occurred in spring 1796. It occurred during a fight over the recently ratified treaty with Great Britain – the so-called Jay Treaty, named for its principal negotiator John Jay.
The House, populated with critics of the then controversial treaty, was interested in seeing documents and communications between President George Washington and Jay to further inform their debate over whether to fund the implementation of the treaty.
The debate set up a clash between the House’s funding prerogative and the treaty making duties the Constitution delegated to the president and Senate.
Washington declined to hand over the documents, claiming executive privilege, yet his interpretation of the privilege came with an exception: impeachment.
This is all the more interesting in light of an op-ed from U.S. Sen. Marsha Blackburn that featured executive privilege as a prime defense for not calling witnesses such as former National Security Adviser John Bolton in President Donald Trump’s impeachment trial.
Setting aside that Blackburn did not directly address any of the charges against Trump, her defense is flawed in several ways that may in fact be injurious to the president she is trying to protect.
Washington’s opinion is not of course a legal ruling, but as Galbraith and Paradis point out, Washington’s comments have been cited by at least one federal judge and carry some weight in understanding the intent of the founders in matters concerning constitutional clashes. Neither was Washington alone in this view.
There is, however, one key area in which Washington’s argument doesn’t match Blackburn’s reliance on executive privilege.
Washington referred mostly to the power the executive branch has to make treaties, saying his privilege precluded the House from dabbling in his foreign policy unless the matter became an impeachment.
As Ryan Goodman and Andrew Weissman contended just this week, one large exception carved out of executive privilege is in cases in which a crime is suspected.
Impeachment covers the behaviors of presidents and other officials, not necessarily crimes, but if in an attempt to get around the privilege claim, impeachment managers asked a judge to rule on the claim, a legal ruling could hold that a crime was committed or suspected of having been committed.
Blackburn’s defense is poor. It works for her because it allows her not to have to deal with any of the underlying charges.
Blackburn’s executive privilege defense should also offend her biggest supporters, who presumably also support the president.
It assumes, apparently correctly, that no one from the conservative groupthink bubble will bother to think much about the pitfalls of this defense, relying instead on their hair-trigger disdain for the impeachment managers.
If this is the best Blackburn can come up with, she ought to consider what she is actually defending and for what purpose.
Alex Hubbard is a columnist for the USA TODAY Network newsrooms in Tennessee. Email him at dhubbard@tennessean.com or follow him on Twitter at @alexhubbard7.