Last Friday the Biden White House confirmed that it will not invoke executive privilege to withhold presidential documents from the January 6 Committee. Former President Donald Trump is claiming that he has the authority to invoke executive privilege himself and that he’ll soon be filing a lawsuit to block the release of the records. He’s even written letters to some former aides, including Steve Bannon, instructing them not to testify before the committee.
Is Trump’s lawsuit going to succeed? It depends on your definition of success. He’ll probably succeed in delaying the release of these records. If Republicans win back the House in November 2022 and Trump’s lawyers can drag out the court proceedings until January of 2023 then, as a practical matter, the lawsuit will have been a success. Running out the clock has been Donald Trump’s go-to play for years.
Legally, however, it’s a somewhat different story.
First, there is a precedent which holds that “a former president may also be heard to assert” executive privilege claims. But the same opinion also observes that “it must be presumed that the incumbent president is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.”
In other words, an ex-president is able to raise a claim of executive privilege to block the release of documents. But that claim is almost certainly going to be trumped by the sitting president’s determination that releasing those documents is in the national interest.
Statutorily, we’ve already made provisions to address an ex-president’s interest in confidentiality and it won’t surprise you to discover that it’s up to the sitting president to make the final call.
Under the Presidential Records Act of 1978, an ex-president can object to the release of a presidential record. If, on review, the sitting president agrees, the record won’t be released.However, if the sitting president doesn’t uphold the ex-president’s claim of privilege—or even just doesn’t respond within a specified period—the record gets released despite the ex-president’s objections unless there is a court order saying otherwise.
Which brings us to the most fundamental reason why Trump’s executive privilege claim would fail as a legal matter. President Trump can’t raise a claim of executive privilege to block the January 6 Committee’s investigation because there is no executive privilege for communications aimed at subverting an election.
In American law, privileges are always narrowly defined and hedged with exceptions.
For example, regardless of what you might have heard, lawyers do not make good co-conspirators because discussions about committing or concealing crimes are exempted from the attorney-client privilege. And while the attorney-client privilege is one of the strongest and widest privileges on the books, it only applies to legal advice. There is no privilege if you are getting business, financial, or political advice from your attorney.
The same is true for executive privilege. The Supreme Court has held, not once but twice, that executive privilege is limited to communications made by the president and the president’s advisors while carrying out official duties. So what President Trump says might be privileged, depending on circumstances. But what Candidate Trump says is never privileged.
And while a presidential candidate has a huge interest in who wins a presidential election, the office of the president itself has no legitimate interest in presidential election results, whatsoever. One of the cornerstones of American democracy is that the government is apolitical and that it cannot and will not put its thumb on the election scales, one way or the other.
It follows that discussions aimed at overturning election results cannot be part of a president’s official duties and are, therefore, being conducted by Candidate Trump. They are not protected by executive privilege even if they occur in the Oval Office and involve the president and the president’s closest advisors. Obviously, that goes double if the president is organizing or giving aid and comfort to an insurrection.
Finally, in U.S. v. Nixon (more commonly known as the Watergate tapes case) the Supreme Court made it crystal clear that executive privilege is presumptive rather than absolute. In other words, an otherwise valid claim of executive privilege can be outweighed by other concerns:
To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality . . . would upset the constitutional balance of “a workable government” . . .
While U.S. v. Nixon limited its discussion to criminal subpoenas, the same sort of balancing test will apply to the subpoenas being issued by the January 6 Committee. It would be extremely odd if any one of the prosecutors in the more than 650 criminal prosecutions related to the January 6 attack on the Capitol could defeat Trump’s executive privilege claim—but that the House of Representatives in the process of investigating the origins of the attack could not.
To put it another way, an ex-president’s generalized interest in confidentiality is always going to be outweighed by the need to defend American democracy against violent mobs attempting to stage insurrections.
On Thursday, Steve Bannon, who has been issued a subpoena by the January 6 Commission, is supposed to show up for a deposition. He won’t. He’s already said he’s going to honor Trump’s “executive privilege” claim and refuse to testify.
If there was one lesson we all should have learned from the Trump years, it’s that it’s always a mistake to sacrifice principle for political expediency. Fudging an issue like this might get you out of a momentarily unpleasant situation but only at the cost of storing up more trouble for later.
To wit: If Congress had taken a principled stand and brought a contempt action against Corey Lewandowski for openly defying Congress by asserting “executive privilege” two years ago, the January 6 Committee would have a much easier time of it today.
The only real solution is for the House to refer Bannon to the DOJ for prosecution for criminal contempt—because a civil contempt action by Congress is just an opportunity for Bannon to run out the clock—and for the DOJ to actually follow through and prosecute. Bannon can raise Trump’s claim of executive privilege in court and, if he loses, he can either testify or sit in jail until he does. Either way, we will have established an important constitutional principle.
Trump’s claims of executive privilege were often absurd when he was president. Being an ex-president has not improved them. Nonetheless, until they are directly challenged and excised, they remain a festering carbuncle disfiguring the rule of law and our constitutional system. Maybe the first step in cleaning up Trump’s mess will be establishing once and for all that executive privilege is a tool of good government rather than a shield for bad behavior.