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‘Not above the law’: Executive privilege’s contentious history from Washington to Trump

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tags: presidential history, Trump



Dwight D. Eisenhower was the first president to use the phrase “executive privilege” after refusing to allow his advisers to testify at a Senate hearing in May 1954. Eisenhower believed that what is said in the White House should stay in the White House.

“Any man who testifies as what he told me won’t be working for me that night,” the president said.

On Wednesday, President Trump asserted executive privilege to shield documents from Congress that would provide insight into the administration’s decision to add a citizenship question to the 2020 Census.

It is the second time the president has invoked executive privilege. In May, he asserted it over special counsel Robert S. Mueller III’s report.

Executive privilege is “the right of the president and high-level executive branch officers to withhold information from Congress, the courts and ultimately the public,” according to Mark Rozell, dean of the Schar School of Policy and Government at George Mason University. Executive privilege, Rozell wrote, can be used to protect national security and “the privacy of White House deliberations.”

The Constitution makes no mention of the concept of executive privilege. However, presidents from George Washington to Trump have resisted demands to share sensitive information with Congress. Some have succeeded. But over the past few decades, presidents have lost key court battles to withhold information.

It all began in 1792 when President George Washington declared that he didn’t have to provide internal documents demanded for a congressional investigation into a disastrous military loss by Maj. Gen. Arthur St. Clair to Native Americans. Treasury Secretary Alexander Hamilton warned that in the future, Congress “might demand secrets of a very mischievous nature.” But Washington eventually turned over papers that “the public good would permit.”

In 1804, President Thomas Jefferson claimed he was exempt from a subpoena for him to testify at the trial of his former vice president Aaron Burr, who was charged with treason.

“Constantly trudging” to the trial in Richmond, he said, would prevent him from fulfilling his presidential duties. Chief Justice John Marshall, who was presiding over the trial, ruled that the president wasn’t exempt. Jefferson didn’t testify, but he did “voluntarily” provide documents sought by Burr, who was acquitted.

Presidential power expanded in 1833, when President Andrew Jackson refused a demand by the U.S. Senate to turn over a list of advisers with whom he consulted before moving money from the national bank to state banks. “I have yet to learn under what constitutional authority that a branch of the Legislature has a right to require of me an account of any communications,” Jackson responded. The Senate voted to censure Jackson, but it still didn’t get Old Hickory’s documents.

President Grover Cleveland “almost single-handedly restored and strengthened the power” of the presidency by his frequent use of executive privilege, according to Henry F. Graff, professor emeritus of history at Columbia University. After taking office in 1885, Cleveland declined to hand over documents to Congress “in the fight over presidential appointments,” Graff wrote.

Read entire article at Washington Post

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