Executive privilege is so hallowed a legal concept that you’d think it originated in English common law and is embedded in the Constitution. Actually, it was dreamed up by President Dwight Eisenhower, who wasn’t even a lawyer, during the Army-McCarthy hearings to bar testimony about a White House meeting on how to silence a certain red-baiting demagogue from Wisconsin. Eisenhower was probably practicing his golf swing when the idea came to him.
“Because it is essential to efficient and effective administration,” Ike wrote Defense Secretary Charles “Engine Charlie” Wilson in a May 1954 letter,
that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters, and because it is not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed, you will instruct employees of your Department that in all their appearances [at the Army-McCarthy hearings] they are not to testify to any such conversations or communications or to produce any such documents or reproductions.
Translation: Stonewall Tail Gunner Joe. University of Iowa law professor Gerald Wetlaufer would later observe that this novel legal doctrine arose not from Eisenhower administration lawyers, who recommended a more routine separation-of-powers claim, but from Eisenhower’s own experience as an Army general, which taught him that loose lips sank ships.
The phrase executive privilege, by which Ike’s improvisation became known, was coined three years later, making it only slightly older than myself. In his 1974 book, Executive Privilege: A Constitutional Myth, Harvard law professor Raoul Berger attributed the coinage to George Cochran Doub, Eisenhower’s assistant attorney general for the civil division. Doub spliced the word executive to the word privilege to fend off a lawsuit brought against the federal government by the Kaiser Aluminum Chemical Corporation. Kaiser alleged breach of contract in connection with the company’s purchase of three war production plants. To prove that Uncle Sam ripped the company off, Kaiser sought certain government documents. But Doub’s neologism prevailed; the court said no. Strangely, when Doub died in October 1981, his New York Times obituary neglected to mention that he invented executive privilege.
Executive privilege acquired legitimacy as a constitutional doctrine with the Supreme Court’s 1974 ruling in United States v. Nixon. This decision heartened liberals by compelling President Richard Nixon to turn secretly recorded Oval Office tapes over to the Watergate prosecutor and to seven Watergate defendants. The tapes established Nixon’s participation in the Watergate cover-up and led quickly to his resignation. More broadly, U.S. v. Nixon established that no president is above the law: