We can all agree that it’s ridiculous for Steve Bannon to dodge testifying before the House committee investigating January 6 with a claim of executive privilege. Bannon left the Trump White House more than three years before the events under investigation. Also, the committee wants to find out about President Donald Trump’s role in a violent insurrection against the U.S. government. And anyway, Trump isn’t president anymore. If Bannon wants to claim executive privilege, the man he needs to see probably is President Joe Biden. The committee is expected, when it meets Tuesday, to hold Bannon in contempt of Congress.
But just as the corruption of the Trump administration merely accelerated a malign drift the Republican Party had followed for decades, so, too, Bannon’s claim of executive privilege furthers, more recklessly, a long-term concentration of ever greater power in the Oval Office. The Trump administration wasn’t the first to abuse executive privilege. It merely turned that abuse to self-parody. In drawing attention to the doctrine’s mischievous elasticity, Bannon may even be doing us a favor.
Executive privilege is so hallowed a legal concept that you’d think it originated in English common law and is embedded in the Constitution. Actually, it was dreamed up by President Dwight Eisenhower, who wasn’t even a lawyer, during the Army-McCarthy hearings to bar testimony about a White House meeting on how to silence a certain red-baiting demagogue from Wisconsin. Eisenhower was probably practicing his golf swing when the idea came to him.
“Because it is essential to efficient and effective administration,” Ike wrote Defense Secretary Charles “Engine Charlie” Wilson in a May 1954 letter,
that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters, and because it is not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed, you will instruct employees of your Department that in all their appearances [at the Army-McCarthy hearings] they are not to testify to any such conversations or communications or to produce any such documents or reproductions.
Translation: Stonewall Tail Gunner Joe. University of Iowa law professor Gerald Wetlaufer would later observe that this novel legal doctrine arose not from Eisenhower administration lawyers, who recommended a more routine separation-of-powers claim, but from Eisenhower’s own experience as an Army general, which taught him that loose lips sank ships.
The phrase executive privilege, by which Ike’s improvisation became known, was coined three years later, making it only slightly older than myself. In his 1974 book, Executive Privilege: A Constitutional Myth, Harvard law professor Raoul Berger attributed the coinage to George Cochran Doub, Eisenhower’s assistant attorney general for the civil division. Doub spliced the word executive to the word privilege to fend off a lawsuit brought against the federal government by the Kaiser Aluminum Chemical Corporation. Kaiser alleged breach of contract in connection with the company’s purchase of three war production plants. To prove that Uncle Sam ripped the company off, Kaiser sought certain government documents. But Doub’s neologism prevailed; the court said no. Strangely, when Doub died in October 1981, his New York Times obituary neglected to mention that he invented executive privilege.