12AD.4.4a Washington’s Response to a Congressional Request for Documents, 30 March 1796

In August 1795, a treaty with Great Britain that was drafted under President George Washington by Secretary of State John Jay was ratified by the Senate. Opponents of the treaty in the House of Representatives questioned their lack of involvement in the treaty, especially if it affected their appropriation (allocating funding) powers and commerce powers. How does this document help us understand the executive branch?

In August 1795, a treaty with Great Britain that was drafted under President George Washington by Secretary of State John Jay was ratified by the Senate. Opponents of the treaty in the House of Representatives questioned their lack of involvement in the treaty, especially if it affected their appropriation (allocating funding) powers and commerce powers. They launched an investigation into the treaty in the House of Representatives and requested documents from President Washington. The term executive privilege was coined in the 1950s during the Eisenhower administration. Executive privilege is the right of the president or high-ranking government officials to withhold information from Congress, the courts, and the public. This right is not stated anywhere in the US Constitution; however, presidents have claimed executive privilege throughout history as an implied presidential power. Most executive privilege claims result from a congressional investigation or oversight committee that asks a president for documents or testimony on an issue, treaty, event, or other executive action. Sometimes presidents provide this information freely; other times they refuse. Presidents have asserted executive privilege in instances involving foreign affairs and national security, costs of programs, firings of officials, and implementation of legislation passed by Congress. While the power of the president to exert executive privilege has been challenged in the courts throughout the years, the Supreme Court has deferred to the executive and legislative branches, prompting them to resolve the issue of congressional investigation and executive privilege on their own.

To the United States House of Representatives
United States March 30th 1796.
Gentlemen of the House of Representatives.

With the utmost attention, I have considered your resolution of the twenty fourth instant, requesting me to lay before your House, a copy of the instructions to the Minister of the United States, who negociated the treaty with the king of Great Britain, together with the correspondence and other documents relative to that treaty, excepting such of the said papers, as any existing negociation may render improper to be disclosed.

… I trust, that no part of my conduct has ever indicated a disposition to withhold any information, which the constitution has enjoined upon the President, as a duty, to give, or which could be required of him by either House of Congress, as a right; … so far as the trust, delegated to me by the people of the United States, and my sense of the obligation it imposes “to preserve, protect and defend the Constitution,” will permit.

The nature of foreign negociations requires caution; and their success must often depend on secrecy: and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions, which may have been proposed or contemplated, would be deemed impolitic; for this might have a pernicious influence on future negociations, or produce immediate inconveniences, perhaps danger and mischief, in relation to the other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties, in the President, with the advice and consent of the Senate; the principle, on which that body was formed, confining it to a small number of members. To admit, then, a right in the House of Representatives, to demand, and to have, as a matter of course, all the papers respecting a negociation with a foreign power, would be, to establish a dangerous precedent.

… I repeat, that I have no disposition to withhold any information, which the duty of my station will permit, or the public good will require to be disclosed; and, in fact, all the papers affecting the negociation with Great Britain were laid before the Senate, when the treaty itself was communicated for their consideration and advice.

… the papers called for can throw no light; and as it is essential to the due administration of the government, that the boundaries, fixed by the constitution between the different departments, should be preserved: a just regard to the constitution, and to the duty of my office, under all the circumstances of this case, forbid a compliance with your request.

Go. Washington.