St. Clair’s Defeat and the Birth of Executive Privilege

Editor’s Note: When he’s not reading Babeled, Tamahome Jenkins is revealing more of history’s mysteries over at his blog, Everything Is History.

Executive privilege has been a popular term over the last 30 years, and if you watch the news you’ve probably heard the term once or twice. Executive privilege is based on the notion that the President and other members of the executive branch have a right to refuse to submit to a subpoena from Congress or the courts. Recently, we’ve seen executive privilege (ab)used by:

• Richard Nixon during Watergate
• Ronald Reagan during the Iran-Contra scandal
• Bill Clinton during his impeachment trial
• George W. Bush for the U.S. Attorney firing scandal

But did you know that the notion of executive privilege was first invoked by George Washington over 200 years ago?

The Background

The year was 1791, and the young republic was only eight years removed from the Treaty of Paris, which officially ended the Revolutionary War and recognized U.S. sovereignty over the land east of the Mississippi River and south of the Great Lakes. Unfortunately for the Native Americans in that region, they were not a party to the treaty, and viewed the new American settlers as invaders from a foreign country. George Washington initially allowed the local militias to handle the conflict independently, but by 1791 he decided it was time to used military force to pacify the area.

St. Clair’s Defeat aka the Battle of the Wabash

Arthur St. Clair

Washington, along with Secretary of War Henry Knox decided it would be best for General Arthur St. Clair to lead the army against the Indians. St. Clair was a revolutionary war general, most famous for being court-martialed for surrendering Fort Ticonderoga in 1777. However, by 1791, he had recovered his image and was governor of the Northwest Territory. So, Washington sent St. Clair a contingent of 2000 men, mostly made up of local militia. Unfortunately, the War Department did not supply these troops well, and morale was low. By October 1791, many of the local militiamen had deserted, and St. Clair was left with 52 officers and 868 enlisted men. On November 4, 1791, the Indians launched a surprise attack against the American forces, and although the battle only lasted three hours, the results were devastating. Of the 920 American soldiers, 632 were killed and 264 wounded (a casualty rate of 97.4%), and Arthur St. Clair would be forced to resign his commission. Nearly 1/4 of America’s standing army had been killed. St. Clair’s Defeat remains the single worst defeat suffered by the U.S. Army in its history.

The Birth of Executive Privilege

The House of Representatives decided to launch an investigation into the events surrounding St. Clair’s Defeat. It was the first Congressional investigation, and also the first of the executive branch. As part of the proceedings, the House of Representatives subpoenaed various documents from the War Department. In response, Washington summoned all of his department heads (considered the first Cabinet meeting), and they established executive privilege based on the separation of powers. Essentially, the President could keep matters secret from anybody whenever it was required for the greater good. Washington would eventually submit the documents anyway, but the notion of executive privilege was here to stay.