Power  /  Debunk

George Washington Invoked Executive Privilege. But He’d Reject Barr’s Version.

Washington supported a much more limited conception of executive privilege.

On Tuesday, Attorney General William P. Barr testified in front of the House Judiciary Committee. Chairman Jerry Nadler asked Barr if he and the president had discussed sending troops to cities like Seattle and Portland, Ore., to quell protests as a reelection ploy.

Instead of denying the salacious charge as one might expect, the attorney general responded, “I will not discuss my conversations with the president.” In doing so, he was claiming executive privilege, something that has been a part of the presidency since March 30, 1796, when President George Washington denied the House of Representatives’ request for executive papers. But Washington himself advocated a very limited definition of executive privilege — a definition wholly divorced from that used by administrations today, but one that would better govern congressional oversight of the presidency because it preserves transparency at the highest levels of government, while protecting national security.

Initially, Washington and Congress saw eye to eye on congressional oversight of the executive branch. In March 1792, Congress created a committee to investigate the defeat of the American army under Gen. Arthur St. Clair at the Battle of the Wabash the previous November — the first instance of the legislative branch attempting to use its oversight powers over the executive. On March 30, 1792, the committee sent requests to Secretary of War Henry Knox asking for all papers pertaining to the battle.

The next day, Washington convened a Cabinet meeting. According to Jefferson’s notes of the meeting, Washington said that he wished “to consult, merely because it was the first example, & he wished that so far as it shd [sic] become a precedent, it should be rightly conducted.” A few days later, the Cabinet gathered again and agreed Congress had the right to request papers, but the request should be addressed to the president as the head of the executive branch; it was inappropriate for Congress to contact the department secretaries directly for materials. The Cabinet also agreed that in this instance, Washington should comply because the information would not damage national security.

Once Congress amended the request to go through the president, Washington instructed Knox to turn over the appropriate material. In the following years, Washington complied with several other requests from Congress that followed the same process, indicating his regard for the oversight responsibility of the legislative branch in the American system of separation of powers.

But everything changed in the wake of the Jay Treaty. In April 1794, Washington sent Chief Justice John Jay to negotiate a treaty that would resolve many of the economic and diplomatic tensions between the United States and Britain that had lingered from the Revolutionary War. After Jay completed ...