The Myth of ‘Executive Privilege’

Historian Kevin Gutzman discusses “executive privilege.” A few snippets:

The Executive Branch was intended by the Constitution’s authors and ratifiers to be precisely that – the executor of policies made by Congress, not a competing power center empowered to thwart Congress’s attempts to gain information.
If the Executive can simply refuse to allow Executive Branch personnel to testify before Congress and refuse to pursue congressional contempt referrals, Congress will be altogether unable to perform its legislative functions. It will be subordinate to the Presidency in the way that Parliament was subordinate to English kings before the establishment of Parliament’s unlimited power to investigate in the 17th century….

The first Congress, full of framers and ratifiers of the Constitution, passed legislation requiring the treasury secretary to provide Congress with information “respecting all matters referred to him by the House of Representatives, or which shall appertain to his office.” Rep. Elias Boudinot had noted that, “this power is essentially necessary to the Government … it is absolutely so.” No one argued to the contrary.
Secretary Alexander Hamilton, a framer, drafted that bill, and he advised President George Washington, also a framer, to sign it. Which he did.
It is true that there were a few instances in the early history of the United States in which presidents refused to supply Congress with information. For the most part, however, the idea of Executive Privilege, like the term itself, is a post-World War II innovation….
The Legislative Branch is, as James Madison noted, the leading branch in a republican government. It is up to Congress to decide on behalf of the American people what information it needs, what questions Executive officials must answer.

Read the whole thing.

Incidentally, Kevin’s books include The Politically Incorrect Guide to the Constitution and James Madison and the Making of America, both of which I highly recommend; together Kevin and I wrote Who Killed the Constitution?

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