If the music sounds familiar, it should be. Because the use of executive privilege by a president of the United States goes all the way back to the first one. George Washington invoked it in 1796 when a House committee wanted to pry into documents dealing with how an unpopular treaty had been negotiated. (Jay's Treaty with Great Britain, which proved as prudent as it had been unpopular.)
The doctrine of executive privilege may not be spelled out in the Constitution, any more than is the Supreme Court's power to declare an act of Congress unconstitutional, but both follow logically from the separation of powers. Theoretically co-equal, independent branches of government are supposed to check and balance each other, each respecting the others' proper role. It can get as complicated as a fancy dance step, and require the same finesse.
The essence of the dispute remains the same as in 1796, and so does the principle involved: An executive branch that can't keep its confidences confidential would scarcely be independent. Congress has no more business prying into such papers than, well, a president's rifling through some congressman's privileged papers.
But the show must go on. The overheated rhetoric pours forth from both sides of the aisle. Equally fervid partisans offer black-and-white depictions of what's at stake in this debate, omitting any shades of gray. It's a presidential election year and historical perspective can be hard to come by as the quadrennial fever mounts. No issue, however historic and familiar, is immune to the passions of the electoral season.
In the journalistic trade and obsession, and out in the saner world, too, people tend to open conversations with "What's new?" and not "What's old?" Which might be a better question. But in the ever nervous, ever immediate present (Breaking News!) nothing is so rare as a little historical perspective. And nothing might be so useful.
We're not the first generation to engage in debates about executive privilege, the checks and balances of constitutional power, and so philosophically on. Not that you might suspect it from the tenor of this debate. But be assured:
We are not alone. We've got plenty of company from the past, much of it more reliable than these ever excitable separate-but-equally partisan types forever shouting at each other on the tube.
Distinguished company from the past, so useful in the present, stands ready to guide us. The authors of the Federalist Papers, for example, understood the necessity of respecting the executive branch's confidences if it was going to retain its energy, unity and independence. No matter who heads it at the fleeting time. Presidents change, not principles.
In their zest for power and pelf, or just their appetite for party-line ideology without much attention to its practical consequences, politicians tend to forget first principles. Like those of the Founders. But the American people shouldn't.
By all means, let this dance swirl on, but keep in mind that it swirls about unchanging principles anchored in law, precedent, tradition and just common sense. Like the principle of executive privilege.
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