He’s making it harder for future presidents to govern.
President Trump has been on an executive privilege extravaganza. In the past month, he’s asserted it to block Congress from obtaining documents about the census citizenship question, invoked it to try to bar the full Mueller report from being given to Congress, and used it to bar his former White House counsel, Don McGahn, from providing documents to Congress.
Executive privilege has a legitimate core, but Mr. Trump’s attempts are going to wind up undermining that core, and make it harder for future presidents to govern. He is essentially saying that he will not turn over information to Congress about potential wrongdoing — the absolute weakest claim to executive privilege along the spectrum of possible claims.
Our constitutional system is defined by a balance between the public’s need for transparency and the government’s need to have a zone of secrecy around decision making. Both are important, yet they are mutually exclusive. The Constitution erred on the side of transparency, with no mention whatsoever of executive privilege in its original text. But the experience of constitutional government (what some might call a “living Constitution”) is that presidents over time have found a need for their advisers to give them frank information without fear of embarrassment, and the privilege has been used for these sorts of routine matters, by both Democratic and Republican presidents alike.
Then came Richard Nixon. He asserted executive privilege to try to block turning over tapes that implicated him and his staff in criminal activity. It didn’t go well for him. The Supreme Court unanimously ruled against Mr. Nixon, saying a president was not above the law. Because the evidence contained on the tapes suggested wrongdoing, the privilege could not be used to shield his and his staff’s misconduct from sunlight. The Supreme Court decision was signed by three justices appointed by none other than Mr. Nixon.
Presidents in the wake of Mr. Nixon were circumspect in their invocations of executive privilege, not wanting to be associated with Watergate. The one exception was Bill Clinton, who used it over a dozen times; in one instance, he tried to block two White House officials from testifying in the Monica Lewinsky investigation. Ken Starr’s impeachment referral to Congress actually enumerated this as a reason for impeachment — arguing that Mr. Clinton had abused executive privilege.
This use of executive privilege — to shield personal wrongdoing — had strong echoes of Mr. Nixon, and for that reason attracted a lot of scrutiny, not simply in Congress but also in the courts. He lost his battle to shield his aides from testifying and ultimately eroded his claim to secrecy more generally. By looking profligate and personal in his use of the privilege, he cried wolf too many times, and he found it much harder to use it in circumstances, like the pardons for former members of the Armed Forces of National Liberation, known by its Spanish acronym F.A.L.N., which waged a violent campaign for the independence of Puerto Rico (President Clinton offered them clemency in 1999 because, he said, their sentences were out of proportion with their offenses).
Presidents George W. Bush and Barack Obama were clearly influenced by the Clinton experience and invoked privilege only sparingly (six times for Bush, one for Obama). That was on par for the post-Nixon presidents (Presidents Gerald Ford, Jimmy Carter and George H.W. Bush each invoked it only once; President Reagan, three times). President Trump, by contrast, is well on his way to following the Nixon-Clinton precedents. Neither ended particularly well.
There is a deep reason for that. Americans can tolerate some secrecy, particularly when it is rooted in protection of the public’s interests. But when the claims appear to hide wrongdoing, they begin to curdle. Instead of safeguarding high-minded principles, the claims look personal, and more like something a king would do. And that is just about what Mr. Trump’s latest invocations look like.
In the teeth of a redacted report that all but labels Mr. Trump a criminal, the president’s claim to try to block the full Mueller report from coming out looks like he is trying to shield evidence of his wrongdoing. The report says: “Substantial evidence indicates that the president’s attempts to remove the special counsel were linked to the special counsel’s oversight of investigations that involved the president’s conduct — and, most immediately, to reports that the president was being investigated for potential obstruction of justice.”
Mr. Trump’s attempt to block Mr. McGahn from providing documents, and presumably giving oral testimony to Congress, is no doubt motivated by a fear of what it will look like on TV when Mr. Trump’s former White House counsel says to the cameras what he already said to Mr. Mueller behind closed doors: Mr. Trump ordered him to fire Mr. Mueller, and he disregarded the order.
Mr. Trump’s use of privilege to block information about his administration’s attempt to alter the census, after a federal judge found Secretary of Commerce Wilbur Ross’s stated reason for doing so not credible and in the wake of striking new evidence suggesting Republican machinations to add a citizenship question to suppress minority voting, appears again to be dubious. It reeks of trying to block the cold truth about the assertions Mr. Ross and Justice Department lawyers have made from coming out. They claimed that Secretary Ross added the citizenship question to help implement the Voting Rights Act. Put aside the plausibility of an argument that this administration has suddenly become concerned with enforcing the Voting Rights Act; the fact that Mr. Trump is afraid to show the documents, which aren’t about secret law enforcement or intelligence operations, raises serious concerns about whether this is anything close to a principled use of the privilege.
Every time a president invokes executive privilege, there are three relevant audiences he has to think about: the courts, Congress and the public. Each has reasons to be worried about Mr. Trump’s profligate invocations. Presidents have a limited reservoir of secrecy available to them — the more they look wanton, the more these other entities grow concerned. And the worst part is that when they abuse the privilege, they risk generating legal precedents that will make it harder for future presidents to use the privilege in settings when they legitimately need it.
It is sometimes said that this Supreme Court will do nothing against this president, that a body with a majority composed of justices appointed by Republican presidents will not rule against him.
But the experience of President Nixon was instructive. The Supreme Court is composed of life-tenured justices for a reason. No one, particularly this president, should assume that politics will protect him in the highest court in the land.
~Neal K. Katyal (@neal_katyal), an acting solicitor general under President Barack Obama, is a law professor at Georgetown.