December 14, 2019

707 words 4 mins read

A Brief History of Executive Privilege

A Brief History of Executive Privilege

A Brief History of Executive Privilege for Democrats

You’ve heard Democrats say that Trump must be removed from office because he asserted executive privilege.

Most Democrats believe that executive privilege is a major crime. But must Democrats hate reading, too, so it’s likely they don’t know any better.

Because I’m generous with knowledge, information, and wisdom, I’m taking time out of my busy Saturday to help you educate the ignorant Democrats in your life. (You can thank me later.)

Is Executive Privilege a Crime?

The answer is no.

Between 1962 and 2012, US presidents asserted executive privilege 34 times by every president except . . . whoops, every president.

Democrats asserted executive privilege the most:

President # Exec. Priv. Assertions D R
Kennedy 2 2 -
Johnson 1 3 -
Nixon 4 3 4
Ford 1 3 5
Carter 1 4 5
Reagan 3 4 8
H.W. Bush 1 4 9
Clinton 14 18 9
Bush 43 6 18 15
Obama 1 19 15

All prior cases of executive privilege were resolved either through negotiation or by the courts. Congress has never impeached a president for asserting executive privilege.

My source for this information is the Reporters Committee for Freedom of the Press. Their source was the Congressional Research Service, 2012. You can see it here, but look quick. When the people who run that website realize their 2012 story to support Obama also now supports President Trump, they’ll destroy that page. (I’ve saved the page as a pdf to protect it from the memory hole.)

It’s funny that when Obama asserted executive privilege to stifle a Congressional investigation into Eric Holder’s deadly Fast and Furious fiasco, the press rushed to educate the lowly public on the history of executive privilege.

But when a Republican president asserts the same privilege, the press pretends there’s no such thing as executive privilege. In fact, the first president to assert executive privilege was Andrew Jackson. And the Supreme Court has upheld the assertion numerous times.

The Supreme Court limits a president’s ability to assert executive privilege in many areas. But in two areas, the court pretty much gives the Executive branch carte blanch immunity from prying Congressional eyes.

Those two areas: national security and diplomacy.

From United States v. Nixon (1974):

In C. & S. Air Lines v. Waterman S. S. Crop., 333 U. S. 103, 111 (1948), dealing with Presidential authority involving foreign policy considerations, the Court said:

“The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.”

Trump Will Prevail

Friends of mine seem concerned that the ignorant Democrats' impeachment will hurt President Trump. It won’t. As much as I hate to use this analogy, Trump is like the creature from Predator—he actually benefits from attacks. Trump is truly antifragile, by Nassim Nicholas Taleb’s brilliant definition: he gains from disorder.

(Since I have no fear that Democrats will act on my strategic advice, I’ll give them some for free: if you want to destroy Trump, flatter him, avoid confrontations with him, and mimic his “we’ll see” approach to predicting the future.)

I don’t know if the trumped-up impeachment articles will pass the full House next week. If they do, I’d expect a very short trial in the Senate, ending in acquittal.

After his acquittal in the Senate, Trump will be more powerful than ever. The Durham indictments will begin rolling out. Many FBI and DOJ big shots will do perp walks into federal buildings on bleak, gray afternoons, their trench coats draped over their handcuffed wrists with aging attorneys running alongside trying to push back the reporters.

At least, that’s the image in my mind. It could be different.

But Trump will be free to be Trump. And 2020 will turn into a landslide of Boris proportions.


Thanks to our great friend Ed Martin for having me on The Ed Martin Movement on December 13. You can listen to the podcast of the episode here.