Headlines Without History

Stephen K Bannon, the former chief strategist of President Trump’s White House — also a former Goldman Sachs Mergers and Acquisitions specialist, who graduated with an M.A. in National Security Studies from Georgetown University, as well as an MBA from Harvard; co-founder of the Government Accountability Institute; former member of the principals committee of the National Security Council; and a former U.S. Navy Lieutenant — has been sentenced to four months in prison, and a fine of $6500, for contempt of Congress. (https://www.nytimes.com/2022/10/21/us/politics/steve-bannon-sentence-contempt-congress.html) His lawyers have said that they will appeal. Executive privilege is one of the issues that has been foregrounded in the media debate about this case.

Disclosure: While I disagree with Steve Bannon about many political issues, I also respect him, and his team, for a number of reasons. I speak to him regularly as a guest on his podcast War Room. I believe he and his team are doing important public service journalism. The concern about which I want to speak now is not about Mr. Bannon personally, or about his case specifically; my warning relates to the broader picture.

Stephen K Bannon, the former chief strategist of President Trump’s White House — also a former Goldman Sachs Mergers and Acquisitions specialist, who graduated with an M.A. in National Security Studies from Georgetown University, as well as an MBA from Harvard; co-founder of the Government Accountability Institute; former member of the principals committee of the National Security Council; and a former U.S. Navy Lieutenant — has been sentenced to four months in prison, and a fine of $6500, for contempt of Congress. (https://www.nytimes.com/2022/10/21/us/politics/steve-bannon-sentence-contempt-congress.html) His lawyers have said that they will appeal. Executive privilege is one of the issues that has been foregrounded in the media debate about this case.

Disclosure: While I disagree with Steve Bannon about many political issues, I also respect him, and his team, for a number of reasons. I speak to him regularly as a guest on his podcast War Room. I believe he and his team are doing important public service journalism. The concern about which I want to speak now is not about Mr. Bannon personally, or about his case specifically; my warning relates to the broader picture.

I believe that this is a dark time for America: because banana republics will “banana republic.” Those on the Left now cheering the debanking, deplatforming, silencing, arrests, the shackling in handcuffs and leg irons, and the bankrupting of those on the Right, or of independent critics of this administration, should realize that there is nothing to cheer for. The events they applaud, can cast shadows over their own future paths; on all of our future paths. They should understand that in an increasingly repressive reality, history shows that each future administration will be devoured by its successor. The unitary, nonpartisan rule of law, in a robust Republic, in contrast, protects us all.

It is also a dark day for America, whatever your partisan views may be, because of the danger that today’s current media effort to revise or discard wholesale the often-distinguished heritage of Presidential confidentiality, represents to future American Presidencies, of any party. In the current media discussion that seeks inaccurately to limit the definition of, and thus to unravel, the two-hundred-year-old tradition of keeping discussions with the President confidential, I see a serious threat to our nation’s future. Legacy media are recasting “executive privilege”, or the tradition of keeping discussions with the President confidential, as a flimsy, archaic fig leaf; as something that, if it exists at all, is only clearly and narrowly and legally defined.

To me, this effort is both scary and ahistorical.

The media is erasing and then re-writing the long and august American heritage and personal commitment of “executive privilege” — a tradition that does not appear in the Constitution, but which has protected our nation in many ways, throughout its history: “The Constitution is silent on the executive power to withhold information from the courts or Congress; the privilege is rooted in the separation of powers doctrine that divides the power of the United States government into legislative, executive and judicial branches.” [https://www.law.cornell.edu/wex/executive_privilege]

In a way that makes me feel as if the world in which I was a young White House spouse had been turned upside-down, the media in 2022 are rewriting the act of respecting executive privilege — keeping confidential one’s conversations with the President — as an example somehow of a lack of ethics, whereas in my experience as a witness to events, and later as a campaign participant, in the Clinton-Gore years, respecting executive privilege — keeping confidential conversations with the President — was understood to reveal, rather, the fact that one had ethics.

This 2007 memo by Aziz Huq, of The Brennan Center for Justice, shows how “executive privilege” used to be defined — that is, before the current media revision of the concept [https://www.brennancenter.org/issues]:

“Background on Executive Privilege”

“Executive privilege refers to a wide variety of evidentiary and substantive privileges.  Despite its importance, executive privilege has never been conclusively defined by Congress or the executive branch.  [Italics mine]. An executive order issued on November 1, 2001, however, catalogues the most important species of executive privilege claims:

The President’s constitutionally based privileges subsume privileges for records that reflect: [1] military, diplomatic, or national security secrets (the state secrets privilege); [2] communications of the President or his advisors (the presidential communications privilege); [3] legal advice or legal work (the attorney-client or attorney work product privileges); and [4] the deliberative processes of the President or his advisors.

The most extensive discussion of these varieties of executive privilege is found in federal case law.  (When Congress and the executive have clashed over privilege issues, their resolutions of the conflicts have not yielded precise formulations.  Congress tends to use blunt instruments, such as the purse power or confirmation authority, to extract concessions from the executive.  The infrequent executive-legislative conflicts that have reached the courts ended inconclusively.)”

[https://www.brennancenter.org/our-work/research-reports/background-executive-privilege]

The above memo shows that “executive privilege,” at least when it was written, was not narrowly or legalistically defined; and the term “advisors” was broadly defined. The Clintons, when I was a White House spouse, for instance, sought confidential advice from friends and supporters from many worlds; from Hollywood and Wall Street, from journalism to technology. The Presidency benefited from the President having a broad range of input in a confidential context.

Presidents invoke confidential privilege, and that effort to keep some executive matters confidential goes back to our founding generation [https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1052&context=faculty_articles]. President Clinton invoked executive privilege on thirteen occasions. [https://www.jstor.org/stable/420643] President Obama invoked executive privilege to shield documents from Operation Fast and Furious. [https://www.propublica.org/article/the-facts-behind-obamas-executive-privilege-claim]. Vice President Cheney invoked Executive Privilege as well. [https://www.pbs.org/wgbh/frontline/article/when-presidents-invoke-executive-privilege/]. And on and on.

A 2021 Associated Press (“AP”) story, revealingly titled “Risky Move: Biden Undercuts WH Executive Privilege Shield”, pointed out the danger that is the core of my argument here: waiving this tradition can eventually haunt future presidencies:

Biden’s decision not to block the information sought by Congress challenges a tested norm — one in which presidents enjoy the secrecy of records of their own terms in office, both mundane and highly sensitive, for a period of at least five years, and often far longer. That means Biden and future presidents, as well as Trump.

While not spelled out in the Constitution, executive privilege has developed to protect a president’s ability to obtain candid counsel from his advisers without fear of immediate public disclosure and to protect his confidential communications relating to official responsibilities.” The AP article concludes correctly that “[I]f history is any guide, once the door to reviewing past presidential records is ajar, future Congresses and presidents could swing it open further as politics warrant.”[https://apnews.com/article/donald-trump-joe-biden-us-supreme-court-congress-capitol-siege-13803c23a094992233df3b6880d2808b]

While any tradition can be abused, there are often extremely good reasons to respect and defend the patriotic tradition of advisors, formal and informal, maintaining the President’s confidentiality; and for all current Presidents to uphold the tradition of confidentiality that will protect all future Presidents.

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