Getting the Jay Treaty Right on “Executive Privilege”

As the House’s impeachment inquiry gets underway, there is much discussion of executive privilege and what the White House has the authority to withhold from Congress. An incident from the Washington administration has been mentioned as authority supporting the president’s power to withhold information related to diplomacy. A close examination of this incident, however, indicates that President George Washington understood that the House would be entitled to this information in the event that it was pursuing impeachment proceedings.

The incident in question was an early example of inter-branch conflict: President Washington’s refusal to turn over certain papers related to the Jay Treaty to the House of Representatives. In the spring of 1796, after this commercial treaty had been ratified by the United States and Great Britain, members of the House sought to turn a debate over whether to appropriate funds to implement the treaty into a broader debate about the treaty – which was far from popular. On March 24, the House passed a resolution requesting that “the President of the United States be requested to lay before this House a copy of the” negotiating instructions given to John Jay, the U.S. diplomat who negotiated the treaty, along with related correspondence, “excepting such of said papers as any existing negotiation may render improper to be disclosed.”

In a written response on March 30, Washington refused to hand over the negotiating instructions.

Fast-forward to the present. In the last two weeks, as the House moves forward with impeachment proceedings, several academics have tied Washington’s decision to the origins of executive privilege. Immediately after stating that “[e]xecutive privilege is at its apogee with respect to the president’s conduct of foreign affairs,” for example, Phillip Bobbitt observes that “George Washington and his Cabinet concluded that the president had sole discretion on whether to release the negotiating record of the Jay Treaty to Congress.”

It is worth emphasizing that the reasoning given by Washington does not support broad claims of executive privilege. The core of Washington’s claim was not that the president had exclusive control over diplomatic information, but rather that the House of Representatives had no legitimate reason for revisiting the making of the Jay Treaty. Washington explained:

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 as a right …

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. The necessity of such caution and 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. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.

In other words, Washington did not withhold the papers based on a free-standing claim that the president can keep confidential diplomatic materials from Congress. Indeed, Washington expressly noted later in his message that the negotiating papers had been shared with the Senate. Rather, Washington pointed to the importance of diplomatic secrecy as an explanation for why the Constitution entrusts treaty-making only to the president and the Senate – an allocation of power which in turn made it inappropriate for the House to see the sensitive negotiating papers. The logic of Washington’s message suggests that the House would be entitled to the negotiating papers if it had a constitutionally appropriate reason for needing these papers.

So, what might have been a constitutionally valid reason for the House of Representatives to obtain the negotiating papers? Immediately after the lines quoted above, Washington indicated that impeachment could be just such a reason. He wrote:

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. I repeat that I have no disposition to withhold any information which the duty of my station will permit or the public good shall require to be disclosed … (emphasis added).

As this sentence makes clear, the privilege being asserted by Washington was qualified rather than absolute. It applied to bar the sharing of negotiating papers “as a matter of course” with a House that had no role in treaty-making. But it carefully carved out the exceptional issue of impeachment – over which, under the Constitution, the House has “sole Power.”

There have of course been many developments related to executive privilege in the years since 1796. My aim here is not to review them or to assess the current state of the law. Rather, it is to make a simple point about the Jay Treaty standoff as precedent. Washington’s reasoning does not support the conclusion that information related to diplomacy can be properly withheld from the House during impeachment proceedings. If anything, its logic suggests the opposite. Washington’s message also showcases important procedural values that the current administration would do well to emulate – promptness in its response time, courtesy in its tone, and clarity in its constitutional reasoning.

Getty Images

 

About the Author(s)

Jean Galbraith

Professor at the University of Pennsylvania Law School, where she focuses on U.S. foreign relations law and public international law, former Law Clerk for Judge Tatel at the D.C. Circuit and for Justice Stevens at the U.S. Supreme Court, former Associate Legal Officer for Judge Meron at the International Criminal Tribunal for the former Yugoslavia