Headlines Without History

How the Democrats' War on "Executive Privilege" will Harm Our Country

Stephen K Bannon, the former chief strategist of President Trump’s White House — also a former Goldman Sachs Mergers and Acquisitions specialist, who graduated with an M.A. in National Security Studies from Georgetown University, as well as an MBA from Harvard; co-founder of the Government Accountability Institute; former member of the principals committee of the National Security Council; and a former U.S. Navy Lieutenant — has been sentenced to four months in prison, and a fine of $6500, for contempt of Congress. (https://www.nytimes.com/2022/10/21/us/politics/steve-bannon-sentence-contempt-congress.html) His lawyers have said that they will appeal. Executive privilege is one of the issues that has been foregrounded in the media debate about this case.

Disclosure: While I disagree with Steve Bannon about many political issues, I also respect him, and his team, for a number of reasons. I speak to him regularly as a guest on his podcast War Room. I believe he and his team are doing important public service journalism. The concern about which I want to speak now is not about Mr. Bannon personally, or about his case specifically; my warning relates to the broader picture.

I believe that this is a dark time for America: because banana republics will “banana republic.” Those on the Left now cheering the debanking, deplatforming, silencing, arrests, the shackling in handcuffs and leg irons, and the bankrupting of those on the Right, or of independent critics of this administration, should realize that there is nothing to cheer for. The events they applaud, can cast shadows over their own future paths; on all of our future paths. They should understand that in an increasingly repressive reality, history shows that each future administration will be devoured by its successor. The unitary, nonpartisan rule of law, in a robust Republic, in contrast, protects us all.

It is also a dark day for America, whatever your partisan views may be, because of the danger that today’s current media effort to revise or discard wholesale the often-distinguished heritage of Presidential confidentiality, represents to future American Presidencies, of any party. In the current media discussion that seeks inaccurately to limit the definition of, and thus to unravel, the two-hundred-year-old tradition of keeping discussions with the President confidential, I see a serious threat to our nation’s future. Legacy media are recasting “executive privilege”, or the tradition of keeping discussions with the President confidential, as a flimsy, archaic fig leaf; as something that, if it exists at all, is only clearly and narrowly and legally defined.

To me, this effort is both scary and ahistorical.

The media is erasing and then re-writing the long and august American heritage and personal commitment of “executive privilege” — a tradition that does not appear in the Constitution, but which has protected our nation in many ways, throughout its history: “The Constitution is silent on the executive power to withhold information from the courts or Congress; the privilege is rooted in the separation of powers doctrine that divides the power of the United States government into legislative, executive and judicial branches.” [https://www.law.cornell.edu/wex/executive_privilege]

In a way that makes me feel as if the world in which I was a young White House spouse had been turned upside-down, the media in 2022 are rewriting the act of respecting executive privilege — keeping confidential one’s conversations with the President — as an example somehow of a lack of ethics, whereas in my experience as a witness to events, and later as a campaign participant, in the Clinton-Gore years, respecting executive privilege — keeping confidential conversations with the President — was understood to reveal, rather, the fact that one had ethics.

This 2007 memo by Aziz Huq, of The Brennan Center for Justice, shows how “executive privilege” used to be defined — that is, before the current media revision of the concept [https://www.brennancenter.org/issues]:

“Background on Executive Privilege”

“Executive privilege refers to a wide variety of evidentiary and substantive privileges.  Despite its importance, executive privilege has never been conclusively defined by Congress or the executive branch.  [Italics mine]. An executive order issued on November 1, 2001, however, catalogues the most important species of executive privilege claims: 

The President’s constitutionally based privileges subsume privileges for records that reflect: [1] military, diplomatic, or national security secrets (the state secrets privilege); [2] communications of the President or his advisors (the presidential communications privilege); [3] legal advice or legal work (the attorney-client or attorney work product privileges); and [4] the deliberative processes of the President or his advisors.

The most extensive discussion of these varieties of executive privilege is found in federal case law.  (When Congress and the executive have clashed over privilege issues, their resolutions of the conflicts have not yielded precise formulations.  Congress tends to use blunt instruments, such as the purse power or confirmation authority, to extract concessions from the executive.  The infrequent executive-legislative conflicts that have reached the courts ended inconclusively.)”

[https://www.brennancenter.org/our-work/research-reports/background-executive-privilege]

The above memo shows that “executive privilege,” at least when it was written, was not narrowly or legalistically defined; and the term “advisors” was broadly defined. The Clintons, when I was a White House spouse, for instance, sought confidential advice from friends and supporters from many worlds; from Hollywood and Wall Street, from journalism to technology. The Presidency benefited from the President having a broad range of input in a confidential context.

Presidents invoke confidential privilege, and that effort to keep some executive matters confidential goes back to our founding generation [https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1052&context=faculty_articles]. President Clinton invoked executive privilege on thirteen occasions. [https://www.jstor.org/stable/420643] President Obama invoked executive privilege to shield documents from Operation Fast and Furious. [https://www.propublica.org/article/the-facts-behind-obamas-executive-privilege-claim]. Vice President Cheney invoked Executive Privilege as well. [https://www.pbs.org/wgbh/frontline/article/when-presidents-invoke-executive-privilege/]. And on and on.

A 2021 Associated Press (“AP”) story, revealingly titled “Risky Move: Biden Undercuts WH Executive Privilege Shield”, pointed out the danger that is the core of my argument here: waiving this tradition can eventually haunt future presidencies:

“Biden’s decision not to block the information sought by Congress challenges a tested norm — one in which presidents enjoy the secrecy of records of their own terms in office, both mundane and highly sensitive, for a period of at least five years, and often far longer. That means Biden and future presidents, as well as Trump.

While not spelled out in the Constitution, executive privilege has developed to protect a president’s ability to obtain candid counsel from his advisers without fear of immediate public disclosure and to protect his confidential communications relating to official responsibilities.” The AP article concludes correctly that “[I]f history is any guide, once the door to reviewing past presidential records is ajar, future Congresses and presidents could swing it open further as politics warrant.”[https://apnews.com/article/donald-trump-joe-biden-us-supreme-court-congress-capitol-siege-13803c23a094992233df3b6880d2808b]

While any tradition can be abused, there are often extremely good reasons to respect and defend the patriotic tradition of advisors, formal and informal, maintaining the President’s confidentiality; and for all current Presidents to uphold the tradition of confidentiality that will protect all future Presidents.

I was a young wife to a White House speechwriter in the Clinton era, and then a political advisor informally to Dick Morris in 1996, during President Clinton’s re-election campaign; formally, I was an advisor to Vice President Gore’s Presidential campaign in 2000.

The honor-code culture of supporting “executive privilege” at that time, or even more broadly, of people from all walks of life protecting confidential conversations with the President, was then robust. The world of Washington at that time was divided socially into those aides, staffers, friends and donors who respected that confidentiality - and who did not ever gossip about what the President or Vice President had said to them or what they had said to the President or Vice President, even if their access was extensive — and, in contrast, those tacky, faithless parvenues, a disrespected minority, who mentioned their insider access and knowledge, however slight, at every glittering occasion.

At dinner parties, at least with serious people, if the President buzzed an aide, the aide would step out of the room; and no one, of either party, would ever ask the aide, on his or her return, ‘What did the President say?’ Doing so would have been considered a shameful affront to the Office.

In this division between the people with patriotism and integrity, who maintained what was still then considered a noble legacy, versus the self-aggrandizing schmucks, who chatted away, it was not a merely legalistic understanding of “executive privilege” that those who honored confidentiality, maintained. Above all it was something that readers today may not even believe existed: a matter of sacred tradition, and of reverence for the office of the President of the United States.

Protecting and respecting the unwritten and poorly defined social contract of “executive privilege,” was something far greater and deeper and more august than a mere legal carveout, or partisan loophole; a staffer or aide or friend or advisor respecting and adhering to Presidential confidentiality, was participating in a revered belief system.

And one’s commitment to respecting the unwritten honor code of keeping discussions with the “Principal” confidential — had nothing to do with the man who occupied the role of President or Vice President. Staffers and officials who were not even of President Clinton’s party, respected executive privilege. One respected Presidential executive privilege, if one was not a complete jerk and sellout, out of one’s unimpeachable, nonpartisan, and not-personal reverence for the Office of the Presidency or of the Vice Presidency of the United States of America.

Respecting confidentiality was a measure of one’s character, in part because the reasons that some fail to maintain confidentiality, as advisors to Presidents of whatever party, are usually self-serving.

This one, a trusted hometown friend, will write a memoir. He or she will sell that book — about life on the campaign trail — for millions. Or he or she will thinly fictionalize the characters involved, for millions.

That one, a close confidant, will sell access or psychological insights or insider information to his boss at his next job, with a lobbying firm; this constituent giving advice may really want the contract that advice would bring with it, if adopted, and will leak the privileged conversation about the supposed benefits of the contract, to force outcomes to his or her own advantage; this longterm ally may be now working informally for an up-and-comer who wants the big job, and will leak an unflattering exchange to solidify the new alliance. Some who break a President’s confidentiality just want their fifteen minutes of fame — they may simply want to go on the talk show beat, after they leave the White House. Or they want to be on the lecture circuit with those insider anecdotes. Or they just want to show off at the less honorable Georgetown dinner parties: “The President said to me…”

In almost all cases, this breach of confidentiality makes the task of governing well, more difficult.

I have written about absolutely everything else in my life — from my earliest adolescent sensibilities, to my teenage eating disorder; from my becoming a mom, to my return to school at midlife; from my spiritual questions, to the death of my precious, scruffy little dog Mushroom.

If anything, I over-share.

But in almost thirty years of writing about absolutely everything else, I have never written about any of the conversations I had with Vice President Gore or his campaign consultants, or with Dick Morris, four years earlier, when he advised President Clinton.

Why not? It’s not that it is not interesting material — fascinating, even. It’s not because I have any secrets, nor am I protecting any secrets — the conversations which I am not disclosing, and that I will never disclose, were simply good, admirable conversations about good policies and strategies, driven by good motives. If disclosed, the discussions would reflect very well on “the Principals,” as they say. It’s not even that these exchanges may or may not be affected by “privilege”; the term is indeed so loosely defined that I searched to find out, and I still can’t tell.

But it does not matter if these discussions are or not, legalistically, since I will never disclose these discussions not only because I signed an NDA — which former press officers, campaign consultants and aides by the dozen have lucratively and in my view unethically sidestepped — but rather, because I pledged my sacred honor, as they used to say in the 18th century, when this nation was born, to a commitment to confidential deliberations.

More importantly, unlike those weasels who do break their commitments, I won’t ever write about those conversations because, like many other decent people who have served as formal or informal advisors, I respect the Offices of the President and of the Vice President of the United States of America. These offices mean something, beyond partisan or personal advantage; and beyond the men and women whom we like or do not like, who happen currently or recently to hold or to have held, those jobs; they mean something beyond ourselves.

And I want future Presidents and Vice Presidents, of whatever party, to be able to serve this country, with a good decisionmaking context, intact.

When we consider this current media recasting of executive privilege as fungible, or as necessarily malign, think of this:

The ideal of executive privilege is necessary for the survival of our Republic, because being President or Vice President is inhumanly isolating, disorienting and hard.

No one who has not seen the Presidency at one remove, or the Vice Presidency firsthand, can possibly imagine what it is like to be in the center of that maelstrom.

If you have never been married to someone who spent days a week, sometimes weeks, near the American President, or in conversation with him; if you have never advised the chief strategist of a Presidential campaign, or advised a Vice President; you would have no way to know what the men (or now women) at the center of the Presidency or Vice Presidency, and their staffers, friends, family and aides, go through day by day.

A President or Vice President, of any party, is like someone standing always in the middle of a tunnel in which two or more trains are always hurtling toward him or her, at top speed, from two or more directions at once, and he or she must just barely sidestep catastrophe all day long.

The air around a “Principal” is like a physical vortex: the adulation, the attacks, the advance teams — the movements of cars, secret service, press attaches, and staging more massive and complex than you can possibly imagine; the constant barrage of headlines, up or down; the glare, the lack of privacy, the exhausting fourteen-hour days, the dawn wake-up calls, the polls, the pushy donors, the ceaseless chess of Congressional relationships, the racing adrenaline of foreign and domestic crises — the wearying, nerve-wracking phalanx and choreography of security — picture this, day after day.

Add to this physical and emotional strain, the distorting sycophancy all around The Principal; the fact that no one likes to bring the bad news; the cosseting, the “management.” People around ‘the Principal’ exploit, or try to manipulate him or her, or soft-peddle emerging problems to “the Principal” continually, and those at the center of the vortex, know this. Executive privilege — confidential communication —is necessary for the survival of our Republic, because various people seek to deceive and betray Presidents and Vice Presidents all day long.

The fact that being an American President or Vice President is unutterably difficult and draining, with no humane respite — and that ‘the Principals’ know that many people around them are trying to manipulate them — means that they depend for good decision-making, for a read of the room, for decent intelligence, or even for basic equilibrium, on those few friends, advisors or allies whom they can actually trust to not disclose what they say, when they need to hash out ideas.

This treacherous workplace environment, in any White House of any party, is why there is so much nepotism at the highest levels. President John F Kennedy could not have been as effective without his brother as an advisor. President Clinton depended upon his wife. President Bush Jr sought out guidance from his father. President Trump also sought to keep family in trusted positions. One can be critical of nepotism — but the untrustworthy nature of many relationships in a White House context, makes it understandable that Presidents would reach out honestly to those already within the family circle. So few others are safe.

That treachery and instability around a President is the reason for executive privilege or confidential communications in the first place. Our forebears knew how difficult these roles were; and they made sure that there was a safe, protected way that an American President could talk through the decisions that could mean life or death to the Republic.

Think about the television series, The West Wing.

The fictional President Josiah Bartlet is an admirable President. But even so, clumsy trial balloons, hasty comments, flip asides, could all be taken out of context — even possibly criminalized — by those on the other side, if this fictional President’s conversations were not shielded by executive privilege.

If President Bartlet did not have executive privilege or confidentiality covering his discussions with his aides and friends, eighty per cent of the dialogue in the show would have to be excised. President Bartlet could not discuss anything openly with anyone.

If you take executive privilege, or confidential communications, away — you take away the ability of a President to sustain a thought process safely outside of himself or herself; let alone to talk through the devilishly complicated issues raised by governing our vast, demanding Republic.

Future Presidents, if fearful that all discussions might find their way into court someday, will be forced, as the AP piece above correctly noted, to govern in dread that any “private” discussion could appear on the front page of The Washington Post by breakfast time. Think if you could survive a similar situation — all private deliberation suspended — in your own life for even a week, and still make good decisions for your family or business. Future Presidents will be hard put to survive, emotionally or intellectually, the vortices of their job, let alone to make good decisions for us, our economy, and our national security.

Apprehensive of constant disclosure, future Presidents won’t even be able to communicate clearly to their advisors; what should be frank confidential debate, will take place in telegrammatic code, easily misunderstood, to possibly catastrophic consequences for the American people.

Think too of how a breach in the expectation of confidentiality will gum up any governance in the future: each ‘side’ will drag all communications of the former Presidency into court, in administration after administration. Future valuable potential advisors or counselors, will back away in advance, rather than answer the call that many now consider to be their patriotic duty: to respond in good faith if a President asks them for advice. If Republicans in the 1990s could have breached the expectation of confidentiality protecting, to the extent it still then did, President Clinton, they would surely have done so, and raked any intemperate comment of his, his friends, or his advisors, over legal coals.

I believe in transparency in general. But I also understand that to govern a nation safely, let alone to be safe from our enemies, not everything can be shared.

When I was a young White House spouse, I respected the fact that my then-husband and his colleagues kept discussions with their boss and with other White House staffers strictly confidential. Now I am married to a former member of the Intelligence Community. There are things he can never tell anyone, not even his wife. While these lacunae create a certain no-go area in a marriage, I respect Brian’s discipline as well, and I try to match it with my own, by not pressing. I see my acceptance of certain silences, as being my responsibility as a patriot too. I know that lives are protected and our nation kept safer by some things never being disclosed.

Before we let the hatred of a specific President lead us to rewrite the rules of our Presidency for the ages to come, consider what a boon the end of American Presidential confidentiality would be, to foreign agents and to assets in DC, to hackers, to our global adversaries. The communications of the President would be always available to our enemies, via undisciplined aides, subjected to one martini too many, or to a cynical seduction, engineered by those who do not have our nation’s best interests at heart.

It is important to understand the radiant aspects of this long legacy of confidentiality in communications with the American President. Presidents, whether they are our choices, or the other guys’ and girls’ choices, must have some privacy in order to deliberate soundly, honestly and effectively on our collective behalf.

If the role of President is thus made into one that no person in that position’s solid judgment can reasonably endure — and if the context around a President’s speech is made so litigious that decent advisors refuse to serve him or her, and thus refuse to serve the nation— we cannot have future leadership with any integrity or coherence — from any party.

Without Presidential confidentiality, we will barely have a meaningful American Presidency, in the future, at all.

And just consider: that situation would suit our existential enemies — long into the future — just fine.