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Trump is right: Former presidents can assert executive privilege

He might not win his case, but his argument has merit.

Then-White House chief strategist Stephen K. Bannon walks in during a listening session with cyber security experts in the Roosevelt Room the White House, Jan. 31, 2017.
Then-White House chief strategist Stephen K. Bannon walks in during a listening session with cyber security experts in the Roosevelt Room the White House, Jan. 31, 2017. (Jabin Botsford/The Washington Post)
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President Biden and former president Donald Trump are locked in another fierce battle — this one not involving electoral votes but rather whether a president may invoke and insist upon “executive privilege” even after he has left office, in defiance of his successor.

Trump has argued that the Jan. 6 select committee has no right to White House papers that might reveal what people in the White House were thinking and doing on that day — framing the stance as a “defense of the Office of the Presidency.” The Biden administration, however, approved the release of the records by the National Archives (the committee agreed to defer its request in the case of a few documents). Meanwhile, Trump has ordered several of his former advisers not to cooperate with the committee, citing executive privilege.

The former president has now sued the archivist to prevent the release of his presidential papers (a hearing in the case is scheduled for Nov. 4).  And the House is poised to hold Stephen K. Bannon — who told the committee he would not comply with the subpoena — in contempt, setting up the possibility of a Department of Justice prosecution of the recalcitrant former advisers.

Many commentators have expressed skepticism that a former president can assert executive privilege in the way that Trump has. But the law is far from settled — and in this particular contest, the 45th president might well best the 46th. At the least, Trump has sufficiently good legal arguments to keep the issue in the courts for months if not years, which would achieve the intended effect of bringing the investigation to a crawl (or ending it if Republicans recapture the House and quash the inquest).

‘Executive privilege’ is a new concept built on a shaky legal foundation

The idea that presidents may keep some governmental information secret dates back to George Washington's administration. But "executive privilege" was not coined until the Eisenhower administration. Its modern contours were only belatedly sanctioned by the Supreme Court in a 1973 case involving President Richard Nixon — United States v. Nixon, better known as the Watergate-tapes case. The policy rationale for executive privilege is that presidents will not receive candid, unvarnished advice from their aides if that advice becomes public as a result of subpoenas, judicial or legislative. Because the courts wish to encourage advice-giving to facilitate sound presidential decision-making, they sometimes refuse to issue or enforce subpoenas against the executive branch. "Sometimes" is the key word, because there are, of course, other interests at stake. Nixon, for instance, had to turn over the tapes. The Court concluded that "the fundamental demands of due process of law in the fair administration of justice" took precedence over executive privilege.

Given how confidently presidents and analysts make pronouncements about executive privilege, you’d be forgiven if you imagined that the concept is fairly well-defined. In fact, its scope and boundaries are uncertain and deeply contested. For instance, does the privilege apply when Congress demands information (as in the current instance) — and to what extent? Remarkably, the Supreme Court has never decided. 

On Oct. 21, the House voted to hold former White House chief strategist Stephen K. Bannon in contempt of Congress for his refusal to comply with a subpoena. (Video: The Washington Post)

It might seem intuitive or obvious that executive privilege may be invoked only by the current president, as several analysts have argued. After all, it is the executive’s privilege, not the former executive’s privilege. But if the rationale for the privilege is candid advice giving, then it would be reasonable for the privilege to extend beyond a president’s term: After all, Trump’s aides may not have supplied unfiltered advice if they knew that all their advice could be aired the week after Trump left office. President Biden faces the same issue with the counsel his aides now supply him.   

Indeed, the Supreme Court has clearly stated that a former president can assert executive privilege. It did so in a sequel to the Watergate-tapes case, Nixon v. General Services Administration (1977), in which Nixon challenged a law that directed the administrator of the GSA to take custody of Nixon’s papers and tapes and have archivists review them (returning papers of a purely personal nature and making others available for potential judicial proceedings). The court wrote: “We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former president, may also be heard to assert them.” Again, however, the court ultimately ruled against Nixon’s broad claim, arguing that the law did not disrupt the workings of the executive branch (in part because that branch maintained control of the documents, and firm limits were placed on public access).

Subsequently, presidents have established different policies for deciding when and how executive privilege can be asserted in the case of a former president’s papers. In 2001, President George W. Bush adopted an executive order that was extremely protective of presidential papers. If either the incumbent president or a former president asserted executive privilege over such papers, the order said, the archivist was to protect them. In effect, each could veto the release of documents. In 2009, President Barack Obama eliminated the ability of a former president to insist upon the secrecy of his documents. The sitting president alone would decide whether to honor a former president’s request to keep records secret. Of course, Trump is contesting this very aspect of the Obama order, arguing that an incumbent does not have the right to waive the privilege held by a former president.

Trump can’t stop John Bolton from testifying

Where presidential papers are concerned, sitting presidents tend to have the upper hand. After all, they oversee the National Archives, which house the papers of former presidents. Biden, concluding that the events of Jan. 6 must be fully investigated, decided to release the Trump records the committee requested — triggering Trump’s lawsuit. Had Biden quickly released the documents after receiving the request, the privilege claim would have been moot and a suit would have been pointless.

In the context of the subpoena to Trump’s aides, however, Trump has the advantage. He and his aides fully control access to the relevant repositories of the information, namely personal memories. It may take the prosecution of Bannon and others to force them to comply with the subpoenas. Even then, they may choose to become martyrs and refuse to share their knowledge; incarceration will not necessarily force them to spill the beans.

The Bannon subpoena is further complicated by his status when he gave Trump advice. Although Bannon was an aide in 2017, he had long left the White House by the time he gave advice to Trump in 2020 and 2021; he wasn’t a presidential aide in the time period the Jan. 6 committee is interested in. This raises another puzzling question: Does executive privilege cover the advice that citizens give to the president? On the one hand, when the Supreme Court endorsed executive privilege, it did so with a particular focus on executive assistants, particularly in the White House complex. On the other hand, the usefulness of candid advice doesn’t vary, whether the advice given is a federal functionary or a private citizen. Presidents have long sought and received private advice, and one can easily make the case that the private advice also must be unfiltered and unvarnished so that the president of a great nation receives the best advice possible, to facilitate the best decision.  

The courts will have to sort this all out; once again, as in 1973 and 1977, they are called to referee contentious constitutional questions in a fraught political atmosphere. If the issue of the Jan. 6 subpoenas gets to the Supreme Court, expect pressure to be brought to bear on the Trump appointees — justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — to rule against the man who appointed them. On the substantive questions, one cannot predict who will win. But the fight will be protracted and the issues are not nearly as clear-cut as many analysts are suggesting. 

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