Peter Keisler served as assistant attorney general and acting attorney general during the George W. Bush administration. Stuart Gerson served as assistant attorney general during the George H.W. Bush administration and acting attorney general during the Clinton administration. Alan Raul served as associate counsel to President Ronald Reagan, representing the White House during the Iran-contra investigations.
After the country voted in 2020 to elect his opponent, President Donald Trump attempted to overturn America’s centuries-long commitment to the constitutional transfer of power. Assisting him was White House chief of staff Mark Meadows, who was acting not in service of the duties of the president, but merely as a political operative for a defeated candidate unlawfully grasping for power.
Now the House Jan. 6 committee is charged with investigating the ensuing attack that imperiled both our constitutional government and the lives of our legislators and others who served at the Capitol. It is no wonder that the committee has ordered Meadows to testify and supply documents — or that President Biden has declined to block Congress’s access by asserting executive privilege, the doctrine that allows a president to protect the confidentiality of certain official deliberations.
Rather than comply, Meadows and his lawyer have launched a public campaign arguing that Biden abandoned a long-held principle of executive privilege by declining to accede to Trump’s attempt to assert it. Meadows, they say, is stuck in the middle of a “separation of powers” dispute, unsure whether to obey Trump or a congressional subpoena with which the sitting president has agreed to comply.
But Meadows and his counsel get just about everything wrong regarding the law and history they invoke. Legal precedent and settled constitutional principles militate strongly against acceding to claims of executive privilege by a former president seeking to cover up conduct that was both purely political and antithetical to the constitutional duties of his office.
First, executive privilege is an outgrowth of executive power that, as the Supreme Court reminds us, rests in “the President alone.” To be sure, the Supreme Court has recognized that a former president can argue that materials pertaining to his administration should be privileged, but given that he is a private citizen, unaccountable to the people and possessing no official authority, his views hold limited weight against the incumbent president. Indeed, the Supreme Court has recognized that it is the sitting president, as the people’s most recently elected representative and current custodian of the office’s interests, who is best positioned to determine whether to assert the privilege.
Second, executive privilege exists to protect the president’s ability to execute duties effectively for “the benefit of the republic.”; it therefore has limited scope. For example, it does not shield wrongdoing, and also does not extend to a president’s political interests (any more than it would extend to personal business interests).
Moreover, contrary to Meadows’s assertion, executive branch officials have long testified on critical issues. President Richard M. Nixon authorized his aides to speak on Watergate, and President Ronald Reagan allowed unrestricted testimony during the Iran-contra investigation. Senior officials from the Bill Clinton and George W. Bush administrations testified before the 9/11 commission; Bush himself sat for over three hours of questioning. And when information was subpoenaed by the House committee on Benghazi, President Barack Obama ultimately allowed Congress to receive evidence it sought. Meadows’s counsel is simply wrong when he argues that Biden’s decision not to assert privilege is novel.
Meadows himself knows this. When he served in the House, Meadows had no problem issuing subpoenas and demanding that subpoenaed executive branch officials “come before Congress … under oath, and tell the truth.”
But this is what is most relevant: Executive privilege may not be invoked to hide a president’s personal wrongdoing. In the wake of the election, Meadows appears to have served Trump’s interests exclusively. Whatever the residual scope of a former president’s power to assert executive privilege over the objection of the incumbent president, it could not protect Meadows here. Meadows’s actions to aid and abet a failed candidate’s unlawful attempt to subvert the results of an election were not taken pursuant to any official duty, and thus may not be protected by invoking a privilege designed solely for official actions.
Third, there is no separation of powers dispute; both the elected executive branch and Congress have said Meadows should comply with the committee’s demands for information. It is only Meadows — and Trump, trying to assert armchair privilege from Mar-a-Lago — who disagree.
Finally, Meadows’s counsel’s invocation of a supposed “long-standing recognition that senior presidential aides, present and past, cannot be compelled to appear before Congress” also falls flat. That is because the United States judiciary has squarely rejected such categorical immunity. Even if some such immunity did exist, it would exist at the discretion of the president — the sitting president. Here, any claim Meadows has to the executive branch’s supposed prerogative of absolute testimonial privilege is eviscerated not only because Biden has permitted Meadows to testify, but also because Meadows was acting on behalf of Trump’s personal interests.
Congress is entitled to obtain the subpoenaed information in support of valid legislative purposes, such as clarifying the Electoral Count Act and better protecting its own members. And Biden, consistent with actions taken by his predecessors under comparable circumstances, has found no reason to shield it. Meadows and his counsel are free to criticize these decisions. But what Meadows cannot do is invoke a presidential privilege intended to benefit the republic to protect his own interests in defiance of the rule of law.