Usually, the sudden resignation of a top Cabinet official just 24 days into a presidential administration and after intrigue involving the Russian ambassador would lead to congressional hearings.
But on Tuesday, House Republicans weren’t interested in investigating the resignation of former National Security Advisor Michael Flynn. Rep. Devin Nunes, the chair of the House Intelligence Committee, said his committee wouldn’t be looking into conversations between President Trump and Flynn. Those conversations, Nunes said, would be covered by executive privilege, the president’s right to keep conversations with his advisers secret from Congress and the courts.
Experts disputed whether that’s true, given that Trump wasn’t in office when Flynn’s conversation with the Russian ambassador occurred. More broadly, though, the reaction from the House GOP is unusual. Members of Congress also don’t usually shrug and say, essentially, “Executive privilege — what can you do?” when faced with a potential investigation.
Usually, Congress goes ahead and asks for more information. It’s up to the White House to decide whether to claim executive privilege rather than respond.
How executive privilege works
Executive privilege isn’t mentioned directly in the Constitution, but presidents going back to George Washington have tried to keep their deliberations and correspondence secret when asked by Congress to turn them over.
Usually, presidents claim executive privilege to prevent releasing any information they don’t want to share — due to national security concerns, because they want their aides to give them candid advice without worrying that it might become public, or because the information would be embarrassing or politically damaging, among many other reasons.
Barack Obama claimed executive privilege to help then-Attorney General Eric Holder avoid testifying about Fast and Furious, the gun trafficking investigation scandal. George W. Bush claimed it so his adviser Karl Rove wouldn’t have to testify about US attorney firings, and to keep documents related to the death of football player Pat Tillman secret, among other reasons.
But presidents aren’t always successful. A federal judge forced Bill Clinton to testify under oath about his relationship with Monica Lewinsky. When Richard Nixon tried to use executive privilege to avoid releasing secret recordings that proved he and his advisers had tried to stop the FBI’s investigation of the Watergate break-in, the case went all the way to the Supreme Court — which ruled against him.
Claiming executive privilege has risks. One is losing in court: A judge might force you to testify anyway, as happened to Clinton and Nixon. The other risks are political. Congress voted to find Holder in contempt for refusing to testify. Refusing to turn over documents or talk about a scandal suggests that, rightly or wrongly, the administration has something to hide.
Executive privilege is for presidents, not Congress
Executive privilege is an excuse for presidents not to answer questions. It’s never been an excuse for Congress not to ask them.
“Congress investigates,” says Mark Rozell, dean of the Schar School of Policy and Government at George Mason University and the author of a book on executive privilege. He explained via email: “The White House then decides whether to make a privilege claim. Having Congress take the lead is completely backwards.”
Asking for documents or testimony can be valuable to members of Congress, even if they never get the information they’ve asked for. The demand forces the White House to take a stand — to either answer questions or say publicly that they’re refusing to share the information.
And if House Republicans were to change their minds and investigate Flynn’s resignation, and if Trump claimed executive privilege to avoid talking about it, it’s not even clear that claim would apply, Rozell said.
Trump wasn’t president when Flynn’s conversation with the Russian ambassador happened, a conversation Flynn claimed was about holiday greetings but instead included discussions of forthcoming sanctions on Russia.
To avoid disclosing the information, the White House would have to prove there was a good reason not to, such as the fact that telling the public more about Flynn’s resignation would threaten national security. But even that would require some argument. “Merely uttering the words ‘national security’ doesn't resolve the issue in favor of secrecy,” Rozell wrote.
If House Republicans really wanted to, they could press for answers. Executive privilege isn’t a reason not to — it’s an excuse.