Aziz Huq on the Shaky Legal Foundation of "Executive Privilege"
‘Executive privilege’ is a new concept built on a shaky legal foundation
President Trump says “executive privilege” prevents the House from seeing the unredacted Mueller report and investigating a number of other subjects. The White House’s letter rebuffing Congress doesn’t spell out exactly why it thinks the requested material is privileged; rather, it asserts a “protective” power of the president, as a matter of constitutional right, to decide what to share. In response, Democratic House leaders complain that Trump is sparking a “constitutional crisis” by blocking their authority to investigate wrongdoing by officials (including, thanks to the impeachment clause, the president).
But few pause to ask where a president’s supposed executive privilege comes from. What if the oversight pileup we’re witnessing flows not from Trump’s norm-busting tendencies but rather from the hazardously open-ended concept of executive privilege itself?
Conservative jurists have ferociously criticized the idea of “unenumerated” constitutional rights (such as a right to abortion), describing them as licenses for partisan entrepreneurship. Yet the right to executive privilege is not mentioned in the Constitution’s text, and its historical pedigree is dubious: In the early republic, presidents did not consistently claim a constitutional right to withhold information from Congress. When the privilege has been invoked, it’s been in situations laced with obvious self-interest and partisan motives. Strikingly, its formal judicial recognition came almost 200 years after the founding. Its tenuous foundations ought to shape how we evaluate Trump’s invocation of executive privilege.
Read more at The Washington Post