Brianne Gorod: The need for congressional oversight goes far beyond impeachment

Presidential administrations are often the targets of such investigations, and presidents are not always eager to cooperate with them. Claims of executive privilege have been a common basis on which presidents have asserted that there are limits to how far they should cooperate with congressional investigations. Like congressional oversight, executive privilege is not mentioned in the Constitution, but has instead been inferred from it as a necessary implication of the president’s constitutional responsibilities and the effective functioning of the separate branches of government.

When the House of Representatives balked at passing a statute needed to help implement the controversial Jay Treaty of 1795, it asked the president to supply all the communications relating to the negotiation of the treaty to inform its deliberations about whether to adopt the legislation the president wanted. George Washington responded that it was his “constant endeavor to harmonize with the other branches” of the government, but that some of the requested documents were sensitive. The House had no proper right to such documents, and the president had no duty to provide them. James Madison, then serving in the House, responded to Washington’s message by insisting that the president could only appropriately assess the executive branch’s own interest in those papers, but he “ought not to refuse them as irrelative to the objects of the House,” which was something that the House alone could properly judge. In the end, they compromised, and the House passed the desired bill.

The first president and the Fourth Congress were grappling with some basic constitutional and political problems that continue to bedevil the 45th president and the 116th Congress today. Washington was confronting the emergence of the first divided government, in which the House majority was in organized opposition to his own administration, a situation that Washington came to regard as threatening to the very foundations of the republic. An opposing party is particularly motivated to make unpleasant demands on the presidential administration and to scrutinize its every action with great skepticism, and presidents are often inclined to think that an opposing party is behaving unscrupulously and unfairly. At the same time, presidents can often rely on their partisan friends to go easy on them and not be too aggressive in exposing the administration’s problems (and in his case, Washington benefited from a Federalist Senate that was willing to ratify the Jay Treaty despite the objections of the Jeffersonian opposition, which held more seats in the House).

Washington and Madison were also confronting a fundamental question in the American constitutional system about who should be able to judge the constitutional rights and responsibilities of the various branches of the government and what tools Congress had available to it to compel a reluctant executive to cooperate with its inquiries. They left those questions unresolved, and they remain unresolved. Both the House and the president insisted on their own authority to judge their own constitutional responsibilities, but both denied the authority of others to judge those responsibilities. The president could reasonably assert executive privilege, but he could not reasonably tell the House what information it did or did not need to perform its own duties. The president had control over the information that the House wanted to examine, but the president needed the House’s cooperation to advance the policies he desired.