Safeguarding Secrecy: Executive Privilege in the Early Republic

Katlyn Marie Carter

1795 pamphlet containing the text of Jay Treaty, published Philadelphia. Courtesy of Wikimedia Commons.

The early republic was a time of experimentation in American government, with myriad quandaries for citizens to settle. As I discussed in my recent JER essay, the question of when state secrecy was appropriate in a republic was prominent among these. The debate it sparked entailed disagreements about what it meant for the government to be representative. Views split particularly over whether elected officials should aim to reflect public opinion or use their own wisdom and judgment to make decisions. Positions on the question of secrecy in government largely broke down along factional lines. Antifederalists and, later, Democratic-Republicans viewed it as a mechanism used to curb democracy; Federalists considered it a useful tool to ensure wise government on the people’s behalf.

This question of when secrecy was acceptable in government took on a specific dimension in debates about the right of Congress to request confidential material from the executive branch. On a number of occasions over the course of the 1790s, the House of Representatives debated whether to request papers from the president. In response, successive presidents weighed their obligations to provide material versus the perceived imperative to keep it private. These early decisions set an important precedent for the extent of executive privilege and bounds of Congressional oversight—an eventuality George Washington, as the first president, was keenly aware of as he considered a request for material relating to the controversial Jay Treaty in the spring of 1796. While Washington was cautious to delineate the circumstances he believed justified maintaining confidentiality, he and his Federalist supporters ultimately safeguarded secrecy in the executive branch and defended the presidential prerogative to make determinations about publicity. It’s a prerogative that has taken on an increasingly expansive definition under modern presidents, often without the concomitant justifications. President Trump and his attorney general William Barr have carried this to an extreme, advancing an idea of unchecked presidential power.[1]

Even after it was ratified, the Jay Treaty continued to be a flashpoint in debates over secrecy in the republic. As the House took up the question of funding certain treaty provisions, Representative Edward Livingston—a Republican from New York—motioned to request from the executive papers related to the negotiation of the treaty. His motion set off a weeks-long debate over the House’s role in treaty ratification, the nature of the Constitution (as Jonathan Gienapp has recently chronicled), and representatives’ right to request confidential material from the president.[2] Though it might seem a relatively minor procedural issue, the incident distilled fundamental anxieties about government structure and function.

Those who supported Livingston’s request cited both Congress’ oversight role and the fundamental need for comprehensive information in order to make their own decisions on policy. As Virginia Representative John Nicholas argued, even if they were not requesting the material to launch an official investigation, “the right. . . of superintendence over the officers of Government, gave a right to demand a sight of those papers, that should throw light upon their conduct.”[3] Moreover, supporters of the request noted at various points that they “did not wish to pass judgment on [the treaty] without knowing the circumstances under which it was made,” as William Giles, also of Virginia, put it.[4]

Yet, Federalists largely disagreed with the reasoning Republicans advanced. Though many members were suggesting that “nothing was more desirable than publicity in all Governmental proceedings,” Connecticut Representative Nathaniel Smith hoped it “would be admitted that there was a great difference in that respect between the Executive and the Legislative.”[5] It ought to be left up to each branch of government to determine whether to release material. Along those lines, some worried the request would set a bad precedent in the sense that it would no longer be at the discretion of the executive to maintain confidentiality.[6]  For Federalists, the debate about requesting confidential materials boiled down to their belief in the propriety of the executive determining when to keep secrets. In other words, the disagreement wasn’t simply politically motivated: It reflected philosophical differences on the question of secrecy in government, and what political representation entailed from different branches.

Most representatives rejected these concerns and the House voted to make the request on March 24. Once made, the question fell to the president to answer: Did the House of Representatives have the right to request confidential communications from the executive branch? It was a question that had come up before, but this time Washington would not brook it. His advisors uniformly warned of the need to respond carefully in such a way as to protect the executive prerogative to keep material confidential at the president’s discretion. It seems likely that there was a genuine concern with being compelled to share private—especially diplomatic—communications as much, if not more, than there was a worry with the immediate political implications of sharing these particular papers.

In his response to the House of Representatives, Washington cast his refusal to produce the papers as the fulfillment of the intent behind constitutional structures. Prefacing his denial with the assurance that his “constant endeavor [has been and will be] to harmonize with the other branches,” Washington attempted to protect himself from accusations of concealment. “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,” he wrote. Washington articulated a tendency toward transparency before delineating the request for diplomatic papers to be a particular case where secrecy was in fact expected and structurally accounted for in the Constitution. This necessity for secrecy “was one cogent reason for vesting the power of making treaties, in the President, with the advice and consent of the Senate; the principle, on which that body was formed, confining it to a small number of members.”[7] In refusing to comply with the request, Washington was asserting executive authority and the limits of congressional oversight specifically in the realm of diplomacy.

The president’s refusal to produce the material left a lasting mark going forward. Two years later, when President John Adams received communications from his commissioners who had been refused by the French government (the XYZ dispatches), his inclination followed Washington’s based on similar underlying principles in terms of the ideal function of the executive, particularly in diplomatic decision-making. When the House debated requesting those papers, Livingston said that while he certainly wished to see the information, he feared the request would be nothing but a waste of time. Obliquely citing Washington’s refusal to provide the Jay Treaty papers, Livingston lamented the likelihood that “the information would not be sent.”[8] While Adams eventually did release those diplomatic dispatches, Washington had laid down a significant precedent asserting the executive’s ability to determine when secrecy was necessary despite of congressional requests for publicity. While he clearly delineated the grounds on which he refused to produce the material, Washington was careful to safeguard the executive’s prerogative in determining when secrecy was necessary and acceptable—a prerogative that has been vastly expanded in recent decades.


Endnotes

[1] This point was also recently made by Lindsay Chervinsky, “George Washington invoked executive privilege. But he’d reject Barr’s version,” Washington Post, July 29, 2020, https://www.washingtonpost.com/outlook/2020/07/29/george-washington-invoked-executive-privilege-hed-reject-barrs-version/. For more on Barr’s idea of unchecked presidential power, see Donald Ayer, “Why Bill Barr Is So Dangerous,” in Atlantic (June 30, 2019): https://www.theatlantic.com/ideas/archive/2019/06/bill-barrs-dangerous-pursuit-executive-power/592951/.

[2] Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge, MA, 2018).

[3] “Proceedings and Debates of the House of Representatives of the United States, at the First Session of the Fourth Congress, begun and Held at the City of Philadelphia, December 7, 1795,” Annals of the Congress of the United States 5 (1795‒1786); 444.

[4] Ibid., 429.

[5] Ibid., 453.

[6] For an example, see the comments of South Carolina Representative Robert Goodloe Harper, ibid., 461.

[7] George Washington to the U.S. House of Representatives (Mar. 30, 1796), The Papers of George Washington Digital Edition (Charlottesville, VA, 2008), 635.

[8] “History of Congress,” Annals of the Congress of the United States 8 (1798‒1799), 1365.

31 August 2020

About the Author

Katlyn Marie Carter is assistant professor of history at the University of Notre Dame.

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