President George Washington’s decision to withhold diplomatic papers from the House of Representatives with respect to the Jay Treaty has become an important precedent in current debates over executive privilege. Earlier this month, the White House Counsel’s Office invoked this precedent as its first cited source in claiming executive privilege with respect to the scope of the testimony of Fiona Hill, the former top Russia advisor on the National Security Council. And as the Ukraine affair first came to light and impeachment entered the discussion, John Yoo, writing for the New York Times, cited this precedent as a major stumbling block that would thwart any impeachment inquiry into President Donald Trump’s abuse of his diplomatic powers.
But as one of us pointed out in a recent post for Just Security, Washington clearly signaled that executive privilege would not be available if the House were pursuing an impeachment inquiry. In withholding the papers, he wrote that
“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 [requesting the papers] has not expressed.”
(Judge Naomi Rao recently quoted this language in drawing a distinction between the information that Congress can access in an impeachment proceedings as opposed to lawmaking in a dissent.)
Earlier this week, we published an op-ed, highlighting this and other evidence from the Founding era and discussed its significance for current events. While writing, we were impressed by just how unanimous Washington’s advisors were on an impeachment carve-out to executive privilege. Here are some key quotes (with emphasis added), from Washington’s Cabinet (whose advice he had requested) and several others:
Secretary of State Timothy Pickering (in an early draft of what would become Washington’s Message to the House):
“[I]n the case of a treaty, if there be any grounds for an impeachment, they will probably be found in the instrument itself. If at any time a treaty should present such grounds; and it should have been so pronounced by the House of Representatives; and a further enquiry should be necessary to discover the culpable person, or the degree of his offence; there being then a declared and ascertained object; I should deem it to be the duty of the President to furnish all the evidence which could be derived from the papers in his possession.”
Treasury Secretary Oliver Wolcott (in a letter to Washington on March 26, 1796):
“Except when an Impeachment is proposed & a formal enquiry instituted, I am of opinion that the House of Representatives has no right to demand papers relating to foreign negociations [sic] either pending or compleated [sic].”
Secretary of War James McHenry (in a letter to Washington of March 26, 1796):
“But as the house of representatives are vested with ‘the sole power of impeachment’ has it not a right as an incident of that power to call for papers respecting a treaty when the object is impeachment? I would presume that it has; but to legitimate such a call the object ought to be explicitly and formally announced. Where it is not, it is not to be presumed.”
Attorney General Charles Lee (in a letter to Washington of March 26, 1796):
“The house of representatives has generally from the nature of its functions a right to demand from the President such statements of the transactions in any of the executive departments as they shall conceive necessary or useful in forming their laws, and there may be occasions when the books and original papers should be produced: for instance to sustain an impeachment commenced or to discover whether there be any malversation in office which might require impeachment—But it does not therefore follow that this branch of Congress possesses a right to demand and possess without the consent of the President copies of all the instructions and documents in his custody relative to any subject whatsoever, whenever they shall be pleased to require them.”
It will surprise no one that, in addition to asking his Cabinet for advice, Washington also asked Alexander Hamilton for his thoughts. In response, on March 29, 1796, Hamilton sent back a draft message for Washington’s consideration. It included the following language:
“Even with reference to an animadversion on the conduct of the Agents who made the Treaty—the presumption of a criminal mismanagement of the interests of the U [sic] States ought first it is conceived to be deduced from the intrinsic nature of the Treaty & ought to be pronounced to exist previous to a further inquiry to ascertain the guilt or the guilty. Whenever the House of Representatives, proceeding upon any Treaty, shall have taken the ground that such a presumption exists in order to such an inquiry, their request to the Executive to cause to be laid before them papers which may contain information on the subject will rest on a foundation that cannot fail to secure to it due efficacy.”
In addition to all this, at some point in time, Washington’s papers came to contain a letter sent by the Chief Justice of the United States, Oliver Ellsworth, on March 13, 1796, to Jonathan Trumbull, a member of the Senate and a former aid-de-camp of Washington’s. In this letter, Ellsworth wrote:
“[N]or does it appear from [the pending House resolution] that [the House has] before them any legitimate object of enquiry to which the papers can apply. They have indeed a right to impeach or to originate a declaration of war, and might for those purposes have possible use for some of the papers in the late negociation [sic], but neither of those objects are avowed by the House nor are they to be presumed.”
It bears emphasizing that this mulling over the possibility of impeachment was not theoretical. The Jay Treaty was a controversy that roiled the new Republic. It created a rift that would never close between James Madison and Washington. There had been popular outcry that Washington was a traitor or at best senile. And some had spoken openly of impeachment. This backdrop makes the unity of opinion regarding the House’s entitlement to documents in an impeachment proceeding all the more impressive.
These writings do not address the question of how the House is to initiate an official impeachment inquiry. We will leave that issue to others. But these writings do make plain that Washington’s line about impeachment in the Jay Treaty was a deliberate concession, a seed planted in history that only now has full occasion to blossom.
Note: The authors thank Gabriela Femenia of the Penn Law Library for research assistance.