As U.S. District Judge Tanya Chutkan tartly explained in denying former president Donald Trump’s bid to prevent internal White House documents from being turned over to the select committee, “Presidents are not kings, and Plaintiff is not President.” This is the judicial equivalent of a mic drop. Case over.
Not actually, of course. Trump has appealed Chutkan’s ruling. A federal appeals court will hear oral arguments on an accelerated timetable later this month. A trip to the Supreme Court is somewhere between likely and inevitable.
Here’s why Trump should lose:
Executive privilege is mentioned nowhere in the Constitution, but it’s an important component of presidential authority and the separation of powers. The Supreme Court first recognized it in 1974 in U.S. v. Nixon, in which Richard M. Nixon resisted the Watergate special prosecutor’s subpoena for his White House tapes.
The court’s unanimous ruling found a “presumptive privilege for Presidential communications,” noting that “a President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately.”
But this privilege is fundamentally for the good of the public — the country benefits from having an effective president — not the personal protection of the chief executive. So, a president’s “generalized interest in confidentiality” has to yield at times to more pressing needs, which in Nixon’s case meant “the demonstrated, specific need for evidence in a pending criminal trial.”
In the years since, the courts have made clear that this countervailing interest extends, although with lesser force, to congressional investigations as well. At the same time, the Supreme Court ruled, in a 1977 case refereeing a battle over control of Nixon’s papers, that a former president still retains executive privilege, again, not quite as strongly.
“To the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties . . . a former President is in less need of it than an incumbent,” the court noted. “In addition, there are obvious political checks against an incumbent’s abuse of the privilege.”
Most relevant to the current dispute, in the aftermath of that ruling, Congress enacted the Presidential Records Act, which referees how such disagreements should be handled. When Congress asks the National Archives for presidential records, it notifies both the sitting president and the former one. Either, or both, can assert the privilege. If the two presidents disagree — specifically, if the sitting president thinks the material should be handed over and the previous president wants it kept secret — the incumbent president prevails, unless a court orders otherwise.
Which brings us to the current standoff, and the interesting twist posed by a case that could more accurately be captioned Trump v. Biden. President Biden has said, through White House counsel Dana Remus, that asserting executive privilege “is not in the best interests of the United States.” Executive privilege, Remus wrote, “should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”
Here’s the difficulty, and it bears some consideration, even when the ex-president is as lawless and loathsome as Trump. Ordinarily, an incumbent president can be counted on to adequately shield the interests of a predecessor; after all, the current president will be a former sometime soon and will want similar consideration. The President’s Club protects its own.
But what happens with an ex-president like Trump, who is distinctly outside the clubhouse and at extraordinary public odds with the current officeholder. Trump lawyer Jesse R. Binnall, whose Twitter profile describes him as a “MAGA lawyer fighting for the Constitution,” offered a florid assessment of Biden’s conflict of interest here. He termed Biden’s refusal to support the privilege claim “a transparent attempt to distract from his current political woes while targeting a political foe.”
This is ridiculously over the top, but with an underlying point for our polarized era: We don’t want incumbent presidents to weaponize executive privilege claims against predecessors with whom they are at odds. Imagine Trump back in office opening the archives of Biden records to a GOP Congress.
And that is where courts come in, as the Presidential Records Act contemplates. Biden’s “decision not to assert executive privilege because ‘Congress has a compelling need in service of its legislative functions to understand the circumstances’ surrounding the events of January 6 . . . is consistent with historical practice and his constitutional power,” Chutkan concluded.
Executive privilege is not an end but a means, a way of preserving effective governance. If there were ever a situation in which it should yield, that is now, to the greater good of preserving democracy itself.