Executive privilege is a made-up thing

Steve Bannon is abusing it, but it was kind of outrageous to begin with.

Steve Bannon told the Jan. 6 committee he won’t appear, claiming executive privilege. That is, of course, outrageous, and he will be cited tomorrow for contempt. But it would be a pity to miss this opportunity to consider what a racket is the very idea of executive privilege, which is only a little bit older than I am. It is not in English common law. It is not in the Constitution. It was dreamed up by the nonlawyer President Dwight Eisenhower, probably while practicing his golf swing, to get Joe McCarthy off his back. It was named three years later by an assistant attorney general you never heard of. The Supreme Court legitimized executive privilege in 1974 and it’s been growing like kudzu ever since.

My latest, for the New Republic, explains why.