In 1796, in the midst of the donnybrook over the Jay Treaty, President Washington asserted what we now call “executive privilege.” He informed the House of Representatives that it had no right to request documents relating to the treaty’s negotiations. Washington, however, did not think the privilege was absolute. Sometimes the right or even the need to know is more important than protecting state secrets.
Washington begins his letter by describing the request, “With the utmost attention I have considered your resolution of the 24th instant, requesting me to lay before your House a copy of the instructions to the minister of the United States who negotiated the treaty.” He moves on to note that all agree that he has done his utmost to do his duty by the other branches, with regard to sharing information.
I trust that no part of my conduct has ever indicated a disposition to withhold any information which the Constitution has enjoined upon the President as a duty to give, or which could be required of him by either House of Congress as a right; and with truth I affirm that it has been, as it will continue to be while I have the honor to preside in the Government, my constant endeavor to harmonize with the other branches thereof.
The duty to share information with Congress, Washington noted, only extended so far. It only required him to act, “so far as the trust delegated to me by the people of the United States and my sense of the obligation it imposes to ‘preserve, protect, and defend the Constitution ‘ will permit.” Indeed, it was his duty to withhold information from Congress insofar as it was necessary to do so to uphold his oath to “preserve, protect and defend the Constitution.” For example,
The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers.
That line of reasoning is consistent with the argument Gabriel Schoenfeld made in his fine recent book, Necessary Secrets. All reasonable people, presumably, will agree, that a functioning government must keep some things secret. There are, in fact, state secrets. That being the case, the public has a “right not to know” some things, or the government would cease to function effectively. The challenge, and the danger, is that that need can easily be abused, and become the means by which our government, in the form of elected officials, appointed officials, or civil servants, avoids accountability by covering mistakes and even misdeeds.
President Washington did note one important limitation to his obligation to keep information from Congress. “It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment, which the resolution has not expressed.” If Congress has reason to believe that the President has committed “high crimes and misdemeanors,” and it is, therefore, considering impeachment, then the calculus shifts toward the obligation to share information with Congress.
In the case at hand, pointing to impeachment was a clever move. President Washington was saying, if you are seriously considering impeaching me, George Washington, go ahead, and I’ll give you the papers. He knew full well that the odds that Congress had to desire to impeach the Father of our Country were close to zero.
As is so often the case with Washington, a smart political move is built upon a principled position. Washington took that to be in the nature of things. As he put it in his First Inaugural Address, “there is no truth more thoroughly established than that there exists in the economy and course of nature an indissoluble union between virtue and happiness; between duty and advantage.” That said, when he brought up impeachment, Washington was not merely engaging in political theatre. He was also a statement of how one begins to make the prudential calculation between secrecy and oversight.
That being the case, Washington’s argument suggests that when dealing with political appointees or civil servants, the bias against releasing secrets tilts toward secrecy as a general rule, but tilts the other way if there is a serious concern that there have been abuses of power or even criminal violations. Politicians are politicians, and it is, of course, a danger that they will abuse claims of criminality to force the release of documents that ought not to be released, but which will embarrass their political opponents. We are dealing with human beings after all. In a hyperpartisan era such as our own, however, the lack of trust across the aisle will make any such discussions difficult and fraught with charges of abuse. The danger of abuse does not weaken the logic of the argument. There are times when the need to know trumps the need to guard state secrets. The idea that there can be a hard and fast positive rule that classified information must always remain so is mistaken.
Such is politics. Men are not, after all, angels. And that is why we have politics in the first place. The idea of delegating governance to disinterested civil servants is itself based upon the false hope that scientifically trained experts can be more angelic than political. Yet, as the founders knew, elites, perhaps even more than the common sort, need to be nudged to do the right thing. Oversight is a challenge, and easily abused, but, ultimately, we must have faith that our fellow Americans, and our checks and balances, including the people’s right to vote out politicians who abuse their power, will keep the constitutional republic on course.