One of the great puzzles in the impeachment hearings against Donald Trump is why so many administration officials are getting away with defying congressional demands to testify. So far, on the president’s instructions, Defense Secretary Mike Esper, Energy Secretary Rick Perry, Secretary of State Mike Pompeo, and acting White House Chief of Staff Mick Mulvaney have refused House subpoenas; Rudy Giuliani, Trump’s attorney, has vowed to do the same. Two other former officials, former National Security Adviser John Bolton and his aide Charles Kupperman — both called to testify before Congress — have asked U.S. District Judge Richard J. Leon to decide between the two branches’ claims, with a hearing set for the distressingly distant date of December 10.
Trump and his aides stand charged with asking a foreign power to help the president in the upcoming presidential election — an obviously impeachable and possibly criminal offense.
Especially now that Congress has formally voted on and opened impeachment proceedings, mooting Trump’s argument that the closed proceedings were illegitimate, only the most tenuous grounds exist to claim immunity from testifying.
But the White House continues to invoke “executive privilege” — a real but ill-defined doctrine that seeks to guarantee that a president can receive unvarnished counsel. If the conversations among top aides were subject to routine public exposure, the argument goes, they would refrain from offering their candid advice.
Although only the cases of Bolton and Kupperman will come before Judge Leon next month (earlier this week Mulvaney sought to join their lawsuit and then, under criticism, reversed himself), the court’s ruling could have implications for all those officials trying to justify their insubordination by hiding behind Trump’s directive.
The key precedent here, as in so many matters Trumpian, is the impeachment of Richard Nixon in 1974. Nixon chose to resign rather than become the first president removed from office through the impeachment process. And what triggered Nixon’s decision was the Supreme Court’s ruling in the poetically named case United States v. Nixon, which severely limited his use of “executive privilege” because there was good reason to suspect presidential abuse of power.
Precedent, in other words, is not on Trump’s side. If the court acts responsibly, it will order Kupperman and Bolton — as well as other recalcitrant administration officials — to testify.
Executive privilege is a relatively recent invention. The Constitution doesn’t mention it. The first president to invoke it was Dwight Eisenhower. Back when Senator Joe McCarthy of Wisconsin was hounding the administration for information about alleged Communists in government, Eisenhower claimed, in a 1954 internal letter, what historian Arthur Schlesinger, Jr., called, in his classic account The Imperial Presidency, “the most absolute assertion of presidential right to withhold information from Congress ever uttered to that day.”
In the past, presidents had sometimes invoked national security or other clearly delineated reasons to spurn congressional demands for testimony or cooperation. But when it came to internal executive branch deliberations, Eisenhower went much further. He insisted that “it is not in the public interest that any of their conversations or communications, or any documents or reproductions” concerning advice to other executive officials be shared with Congress — an assertion of “boundless and unreviewable executive control of information,” as Schlesinger wrote.
But because Eisenhower was at war with the despised and reckless McCarthy, most Democrats at the time didn’t perceive the danger in Ike’s expansive claim. Nor did they rush to challenge it. Eisenhower prevailed, and over the balance of his presidency he defied Congress at least 44 times.
In the 1960s, Presidents John F. Kennedy and Lyndon B. Johnson asserted executive privilege far less aggressively than Ike had. On the other hand, the broader conflict over government secrecy simultaneously intensified. In the course of the decade, the reflexive deference to the presidency created by the exigencies of the Cold War eroded. The public vocally protested U.S. nuclear policy and the Vietnam War. Books like Thomas Ross and David Wise’s The Invisible Government (1964), which drew back the curtain on CIA-abetted coups in various foreign countries, both revealed and encouraged a newfound willingness to look askance at presidential claims of secrecy.
Instead of assuming that the presidency was justifiably protecting national security, Americans increasingly suspected that it was unjustifiably hiding evidence of its own malfeasance. By the late 1960s, the younger radicals who comprised the so-called New Left had helped to mainstream a thoroughgoing skepticism of presidential assertions of privilege.
Democratic senators charged that Nixon’s policy amounted to “eternal privilege” — thus placing White House activities permanently beyond congressional oversight
All of this tension came to a head under Richard Nixon — even before Watergate. By nature secretive, and instinctively inclined toward skullduggery and dirty tricks that it was in his interest to hide, Nixon warred with Congress constantly over the disclosure of information. The fact that (as under Eisenhower) a Republican president was facing off against a Democratic congress only sharpened the conflict.
The struggle over executive privilege deepened during Watergate, as Nixon tried to keep key presidential aides from testifying before the Senate committee investigating the burglaries and others alleged abuses of power. Democratic senators charged that Nixon’s policy amounted to “eternal privilege” — thus placing White House activities permanently beyond congressional oversight.
These concerns took on new import after the revelation in July 1973 that the president had been secretly tape recording his conversations, both in person and on the phone, for the last two years. White House aide Alexander Butterfield’s disclosure of this sensational fact to the Senate investigative committee made it evident that questions of Nixon’s involvement in the crimes of Watergate might well be answered by these magnetic reels.
Amid our current fast-moving impeachment proceedings against Trump, it can be hard to remember why the Nixon drama dragged on as long as it did. The Senate Watergate Committee convened in early 1973, but Nixon didn’t resign until August 1974. One of the main reasons for the delay was the protracted struggle over access to the tapes, which had to wind its way through the court system.
At every turn, Nixon tried to block both Congress and the Watergate special prosecutor from listening to or seeing transcripts of those tapes. The notorious Saturday Night Massacre of October 1973 — in which Attorney General Elliot Richardson and his deputy William Ruckelshaus both resigned rather than fire the prosecutor, Archibald Cox — was sparked by Cox’s insistence that Nixon surrender the all-important recordings. Even more important, the case of United States v. Nixon was meant to settle the matter of whether Nixon (who months earlier had apparently erased a key portion of one crucial tape) had the right to withhold additional recordings that promised to shed light on possibly criminal activity.
In the spring of 1974, Leon Jaworski, Cox’s successor as special prosecutor, subpoenaed a number of tapes and documents beyond those which Nixon had already agreed to share. The president’s lawyers asked Judge John Sirica of the U.S. District Court for the District of Columbia, who was overseeing the Watergate trials, to quash the subpoena.
Sirica refused, and the case went to the Supreme Court. Adding to the suspense, Nixon had appointed four of the nine sitting justices (though William Rehnquist, who had served in the Nixon Justice Department, recused himself), and gossip circulated that Chief Justice Warren Burger, who remained close to Nixon, had promised the president a favorable outcome.
As it happened, Burger and the other seven participating justices agreed that Nixon should have to surrender the material. But they struggled to find common ground on the legal question of what merit, if any, existed in the relatively new concept of executive privilege. And led by Associate Justice William Brennan, who remembered the value of unanimity in 1950s anti-segregation cases, they agreed that they should arrive at a ruling that all of them could sign on to — since an 8–0 opinion would speak with a kind of authority that a split decision would not.
The Nixon ruling came down on July 24, 1974. Its key holding was to insist that the president had to comply with the subpoena and fork over the tapes.
“Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” Burger wrote for the Court. “Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial.”
It was notable as well, however, that within this rebuke to the president the Court did recognize the idea of executive privilege for the first time. The reference to “military, diplomatic, or sensitive national security secrets” allowed that the concept had limited merit.
Still, the legitimate need to make sure that presidential aides enjoy some presumption of confidentiality was limited to these realms. If it rested “merely on the ground of a generalized interest in confidentiality,” the Court said, “the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice.” And in the case before the justices, it was clear that Jaworski had established a “sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment.”
Accordingly, Nixon had to produce the sought-after tapes and documents.
Those tapes — especially the “smoking gun” tape of June 23, 1972 — showed Nixon clearly instigating an illegal cover-up of the break-in at Democratic headquarters at the Watergate building days before. In particular, he had instructed the CIA to lie to the FBI and tell them to back off their criminal investigation of the burglary for national security reasons. The CIA eventually declined to do so, but merely in urging this illegal behavior, Nixon had clearly committed a crime. Once all of this became known, Nixon had no choice but to resign.
United States v. Nixon remains a landmark Supreme Court case. It reaffirmed, above all, that the president is not above the law — as the cliché of the day had it. But, more specifically, it put the kibosh on the kind of blanket claims of executive privilege that Eisenhower had invented and that Nixon had enlisted for his own self-preservation.
Now Donald Trump is trying to resurrect that doctrine. We are already seeing its weakness, as several lower-level administration officials have shown their courageous willingness to defy the president and come before Congress in open hearings to reveal what they know.
Now it’s time for the judiciary to push back against the White House, too. A court ruling that executive privilege cannot prevent vital testimony in a case of allegedly impeachable behavior would go a long way not only toward helping Congress get to the bottom of the Ukraine scandal, but also in limiting once again the dangerously amorphous and expandable concept of executive privilege.