Lindsay M. Chervinsky: George Washington invoked executive privilege, but he'd reject William Barr's version



On Tuesday, Attorney General William Barr testified in front of the House Judiciary Committee. Chairman Jerry Nadler asked Barr if he and the president had discussed sending troops to cities like Seattle and Portland, Ore., to quell protests as a re-election ploy.

Instead of denying the salacious charge as one might expect, the attorney general responded, "I will not discuss my conversations with the president." In doing so, he was claiming executive privilege, something that has been a part of the presidency since March 30, 1796, when President George Washington denied the House of Representatives' request for executive papers. But Washington himself advocated a very limited definition of executive privilege — a definition wholly divorced from that used by administrations today, but one that would better govern congressional oversight of the presidency because it preserves transparency at the highest levels of government, while protecting national security.

Initially, Washington and Congress saw eye to eye on congressional oversight of the executive branch. In March 1792, Congress created a committee to investigate the defeat of the American army under Gen. Arthur St. Clair at the Battle of the Wabash the previous November — the first instance of the legislative branch attempting to use its oversight powers over the executive. On March 30, 1792, the committee sent requests to Secretary of War Henry Knox asking for all papers pertaining to the battle.

The next day, Washington convened a Cabinet meeting. According to Jefferson's notes of the meeting, Washington said that he wished "to consult, merely because it was the first example, & he wished that so far as it shd (sic) become a precedent, it should be rightly conducted." A few days later, the Cabinet gathered again and agreed that Congress had the right to request papers, but that the request should be addressed to the president as the head of the executive branch; it was inappropriate for Congress to contact the department secretaries directly for materials. The Cabinet also agreed that in this instance, Washington should comply because the information would not damage national security.

Once Congress amended the request to go through the president, Washington instructed Knox to turn over the appropriate material. In the following years, Washington complied with several other requests from Congress that followed the same process, indicating his regard for the oversight responsibility of the legislative branch in the American system of separation of powers.


But everything changed in the wake of the Jay Treaty. In April 1794, Washington sent Chief Justice John Jay to negotiate a treaty that would resolve many of the economic and diplomatic tensions between the United States and Great Britain that had lingered from the Revolutionary War. After Jay completed negotiations, Washington convened an emergency session of the Senate, handing over the treaty for senators' review on June 8, 1795. The Senate voted to ratify the treaty a few weeks later.

Although the Senate ratified the treaty, some of the terms were still unpopular and Washington was unsure how to proceed. He spent a few months considering the substance before ultimately signing the treaty and delivering it to the House of Representatives in August.

While the House doesn't usually receive treaties, Article VI of the Jay Treaty required the United States to create a commission to adjudicate prewar debts owed by Americans to British merchants. To form the commission, the House needed to pass legislation to provide the funds. The Democratic-Republican opposition in the House despised the treaty and saw an opportunity to scuttle it. On March 2, Rep. Edward Livingston of New York introduced a resolution requesting all papers relating to the Jay Treaty negotiations, hoping that the papers would reveal details that would embarrass Jay and the Washington administration.

Perhaps Livingston thought Washington would comply with the request as he had done with earlier congressional requests. But Livingston underestimated the first president's willingness to refuse a congressional request.

On March 31, with his Cabinet's support, Washington replied to Livingston's resolution saying that these circumstances surrounding the Jay Treaty "forbid a compliance with your request." He explained that diplomacy required caution and secrecy. Other foreign powers might distrust American diplomats in the future if Washington turned over papers revealing Jay's negotiations with the British. He had to protect the nation's ability to negotiate additional treaties in the future.

But even in his refusal to cooperate, Washington still used this opportunity to reaffirm the House's oversight responsibility. He reminded congressmen of all the times he had willingly handed over executive branch papers and his general attitude of compliance. He was not denying the House's role in congressional oversight, but applying select limitations to protect national security.

Washington also reminded the congressmen that the Constitution provided the House no role in the normal course of treaty-making business. The Senate and the president were tasked with negotiating treaties with foreign powers. Accordingly, Washington confirmed that he had provided the Senate with all of the appropriate papers for their deliberations.

Washington even went so far as to create an additional limitation on executive privilege. He explained that if the House opened an impeachment investigation, then they would gain additional investigative authority and he would turn over all executive papers.


Washington's support for the treaty and strong stance against Democratic-Republican interference proved compelling and the House voted to appropriate the funds for the treaty on April 30, 1796, even though Washington never turned over the materials Livingston requested.

Washington also established a powerful precedent for executive privilege for his successors. Because Washington asserted executive privilege, other presidents were empowered to do so as well with his example in mind. In recent years, however, presidents have expanded the use of executive privilege to cover all manner of activities and legal precedent often supports executive stonewalling.

But while some information must remain secret for the sake of national security, including the details of military and diplomatic missions, as Washington understood, the nation would benefit from a return to Washington's original principles. Subjecting executive deliberations to congressional and public oversight safeguarded the public interest and gave Americans confidence in their government, something that Washington hoped to protect for future generations.

Lindsay M. Chervinsky is scholar-in-residence at the Institute for Thomas Paine Studies and a senior fellow at the International Center for Jefferson Studies. She is the author of" The Cabinet: George Washington and the Creation of an American Institution."

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