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.
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