In plain language, President Joe Biden rejected former President Donald Trump’s assertion of executive privilege over executive branch information pertaining to the Jan. 6 insurrection. In a letter to the archivist of the United States, White House counsel shared that executive privilege “is not in the best interests” of the country. The White House’s interpretation is consistent with the first use of executive privilege by George Washington and the powerful precedent that he established in 1796. This limited scope of executive privilege, and the inherit right of congressional oversight, is a welcome step toward a more balanced government.
The words “executive privilege” do not exist in the Constitution, nor is there a right to presidential privacy articulated in the original document. Yet, as presidential authority expanded over the course of the 20th century, so too did presidents’ assertion of executive privilege—all without additional legislation, statute, or constitutional amendment defining this right. Instead, the president’s authority to keep certain information private stems from precedent, custom, and norms.
On March 30, 1796, President George Washington asserted executive privilege for the first time. A few days prior, Jeffersonian Republicans in the House of Representatives had requested all executive papers pertaining to the Jay Treaty. John Jay had negotiated a new treaty with Great Britain to address the lingering tensions from the Revolutionary War, and the Senate had ratified it in June 1795. The treaty then went to the House because it required the U.S. government to create a commission, which cost money. Republicans were convinced that Jay had intentionally sold out southerners in the negotiations, so they requested all executive papers hoping that it would embarrass the administration and scuttle the treaty.
In his response, Washington wrote, “the duty of my office, under all the circumstances of this case, forbid a compliance with your request.” He then provided three specific reasons for his rejection. Washington explained that diplomacy required secrecy. If he turned over the papers, other nations might believe their communications would be made public as well, and therefore less likely to engage in negotiations in the future.
By emphasizing the importance of discretion in foreign policy, Washington drew an important distinction between domestic and international matters. The March 1796 request for papers was not the first issued by Congress. In March 1792, Congress had created a committee to investigate the embarrassing defeat of the American army at the Battle of the Wabash. As part of the investigation, the committee requested papers related to the army’s mission from the departments of treasury and war. Critically, Washington complied with this request and turned over the relevant materials. Washington’s obedience in 1792 demonstrates his belief that Congress retained a greater oversight authority over developments at home.
Washington also emphasized Congress’s critical oversight in impeachment proceedings. He reiterated his respect for the legislature but noted that this request was not part of an impeachment process. In other words, impeachment investigations carried a much higher bar for executive privilege, but since this investigation was not an impeachment, Washington believed he enjoyed more discretion.
Finally, Washington took the House to task for trying to assert itself into the treaty-making process. He reminded them that he had served as the president of the Constitutional Convention and had participated in the debates that crafted Article II of the Constitution. His recalled the delegates agreeing that “the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate.” Therefore, the House has no role in forging a treaty and “the assent of the House of Representatives is not n[e]cessary to the validity of a treaty.”
If the congressmen disagreed with Washington’s memory, he offered them the opportunity to peruse “the journals of the General Convention, which I have deposited in the office of the department of State.”
Since Washington’s assertion of executive privilege, courts have mostly upheld this presidential power. They have imposed a few meager limitations, including the 1974 case United States v. Nixon, in which the Supreme Court ruled President Nixon could not assert executive privilege over his Oval Office tapes, and the 1997 case Clinton v. Jones, which denied presidents the ability to assert executive privilege over their activities before taking office. Outside of these two cases, most executive privilege disputes are “resolved through political negotiation and accommodation.”
However, these limitations pale in comparison to the restrictions Washington himself articulated. The first president never questioned Congress’s right to oversight, but recent presidents have increasingly utilized executive privilege to avoid answering to the legislature. By refusing executive privilege, President Biden is adhering to the precedent set by Washington and helping restore congressional oversight. Given the stakes of the Jan. 6 investigation, this oversight has never been more important for the coming months.
Lindsay M. Chervinsky, Ph.D. is a presidential historian and Senior Fellow at the Center for Presidential History at Southern Methodist University. She is also the author of The Cabinet: George Washington and the Creation of an American Institution and can be followed on Twitter @lmchervinsky.