Will Trump’s use of executive privilege help him avoid congressional oversight? It didn’t help Richard Nixon

Like Donald Trump, Richard Nixon tried to stonewall congressional investigations into crimes allegedly committed in the White House.

“Why, we’ll just let it go to the (Supreme) Court. Fight it like hell,” Nixon said.

But the stone wall crumbled under pressure from the public, Congress and the courts, and its rubble formed the foundation for an article of impeachment.

As the Senate Watergate investigation began in 1973, Nixon took a position like Trump did on May 2, when he barred former White House counsel Don McGahn from testifying before Congress about potential obstruction of justice by the president.

To block current and former White House aides from testifying before Congress, Nixon claimed that “executive privilege” shielded presidential conversations from congressional oversight.

And just as Trump claimed on Wednesday that executive privilege allows him to withhold the complete, unredacted Mueller report from Congress, Nixon claimed it allowed him to withhold executive branch documents.

President Donald Trump asserted executive privilege to keep information about the Mueller report from Congress. AP/Alex Brandon

Why Nixon resisted

Nixon’s claims of executive privilege were a matter of political survival.

One of the crimes for which Congress was investigating Nixon was obstruction of justice, and he was guilty.

There is no credible evidence that Nixon knew about the underlying crime, the Watergate break-in, until after the burglars got caught.

But Nixon did know that some of those involved in the break-in were linked to other crimes he personally initiated, such as the illegal leaking of information obtained from grand juries to discredit his political enemies.

The president had obstructed the FBI investigation of Watergate to conceal his own crimes. On June 23, 1972, for example, in a conversation captured on his own secret White House taping system, Nixon approved a plan to use the CIA to obstruct the FBI investigation. This tape ultimately became known as “the smoking gun,” since it proved that Nixon was guilty of obstruction.

Nixon was using “executive privilege” to conceal his obstruction from Congress and the Watergate special prosecutor.

Political survival

Nixon could not hold the hard line for long. It made him look guilty, even to supporters, who started asking why he didn’t just let his aides testify if he was innocent.

And when former aides decided to testify against him, as former White House counsel John W. Dean III did on national television, it was obvious Nixon had no power to stop them.

New York Times, May 23, 1973. Screenshot, NY Times archive
If Nixon wanted any current or former White House aides to testify in his favor – there were many who were willing to, from H.R. Haldeman to Patrick Buchanan – and offset the bad publicity he was getting from the hearings, he had to reverse himself. In May 1973, Nixon announced that “executive privilege will not be invoked as to any testimony concerning possible criminal conduct.”