Executive Privilege: Take It Seriously

Tuesday, January 25, 2022
The White House
Image credit: 
Orhan Cam, Shutterstock

It has certainly been a bad week for Donald Trump in the legal arena, as his many opponents and detractors have launched multiple criminal investigations and civil lawsuits against him in New York, Georgia, and elsewhere. But his worst moment was the Supreme Court’s eight-to-one drubbing in its short decision in Trump v. Thompson.  Over the lone dissent of Justice Clarence Thomas, the court refused to entertain Trump’s claim of executive privilege, relying heavily on a similar decision of the Court of Appeals for the District of Columbia Circuit which deferred to the House’s demand that a thorough investigation of the events that led to the Capitol riots/insurrection of January 6,, 2021, necessitated a refusal of the privilege. I think that both anti-Trump decisions are seriously in error. A visceral dislike for Donald Trump offers no grounds for making sound policy. The Supreme Court should reconsider its brief and hasty decision, which poses a genuine threat to the political stability of the presidency.

I am no Trump partisan. As early as February 2017—to much overt pushback—I asked publicly for Trump to resign for the good of the country. His divisive personality has created intolerable political confrontations, and all too often he put his enormous ego ahead of any decent conception of the public good. The (vain) hope of that exhortation was to make Mike Pence president of the United States. The plea was always tricky because contending with Trump’s multiple gyrations made it necessary to accept or reject his specific decisions under the principle of “Trump à la carte.” A man who can be deeply misguided on foreign trade and immigration nonetheless did very well, in my view, in his environmental responses to global warming and in certain key foreign policy decisions, such as moving the US embassy to the Israeli portion of Jerusalem and orchestrating the complex political deal between Israel and several Arab nations, thereby undermining the major Palestinian roadblock that had stood in the way of improved Arab-Israeli arrangements generally. So by 2020, I endorsed Trump over Joe Biden—a call that I do not regret.

Going forward, however, the nation and the Republican Party will suffer a devastating blow if an aging Donald Trump continues to harbor any pretensions for a second term. Such a nomination quest would block the emergence of younger Republican candidates and tar the party with his senseless confrontational posturing. Right now, Ron DeSantis looks like an obvious Republican front-runner, and Rich Lowry is right to exhort DeSantis to learn from some of Trump’s major shortfalls. These are not-so-subtle hints to Trump that he should gracefully step aside in the next presidential election—a suggestion he seemed to internalize by, thankfully, keeping a low profile during the 2021 Virginia gubernatorial election when Republican Glenn Youngkin edged out Terry McAuliffe. 

But it is one thing to oppose Trump politically. To take after him legally is quite another. I have long stated my stark opposition to the Steele dossier and the first and second Trump impeachment trials. And I hold no brief for his deeply troublesome behavior on January 6, 2021. But by the same token, it is hard to say any kind word about the January 6 commission, whose own constitutional standing has been challenged and which is accused of being as partisan as Trump himself has been. As Glenn Greenwald has noted, the committee uses its dubious claim that the episode was as dangerous as 9/11 to justify taking procedural liberties with its claims for a vast subpoena power.

When the executive privilege issue came to the Supreme Court, its members should have been on high alert—there is nothing so dangerous as one political party, acting on its own, pursuing the leader of the former political party with criminal investigations. Nonetheless, eight members of the Supreme Court wrote a short one-paragraph opinion whose major premise was to defer to the decision below by concluding that it did not have to investigate the tricky question of whether a former president is entitled to claim executive privilege for his papers that are deposited in the National Archives. Its sole reason was that it was unnecessary to look closely at the case after the Court of Appeals “had concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former president necessarily made no difference to the court’s decision.”

Unfortunately, that Circuit Court opinion, written by three Democratic appointees to the Court of Appeals, did not once acknowledge its troublesome political implications. At no point did the appellate judges mention the huge political divide between President Biden, who has harshly criticized Trump, and the Republican Party. Instead they took a deeply deferential approach that treated the president and the Congress as though they were dispassionate guardians of the law, notwithstanding their obvious political agenda. They wrote: “President Biden agrees with Congress that its need for the documents at issue is ‘compelling[,]’ and that it has a ‘sufficient factual predicate’ for requesting them.” There was no elaboration of this key finding, and no pushback against this argument, by asking, for example, that in this high-stakes struggle the district court judge make an independent review of the documents to see which papers should be turned over, and which not. Nor did that court suggest that the committee should keep these papers confidential until the investigation is complete and their relevance is assured. 

Nor is the Circuit Court correct to list as one of the predicates for which papers should be released the fact that “President Trump directed his followers to go to the Capitol and ‘fight’ for their country with the aim of preventing Congress’s certification of the electoral vote. . . . ‘[Y]ou’ll never take back our country with weakness. * * * We have come to demand that Congress do the right thing and only count’ certain electors.” The difficulty here is that Trump’s foolish statement is a classic form of protected speech, for as the Supreme Court held in Brandenburg v. Ohio (1969), even the advocacy of the use of force is punishable only when such advocacy is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” A plain reading of Trump’s full passage indicates it only urges the recount, which is not an express—or even implied—call to storm the capital by force. The exhaustive evidence gathered to date has not shown a sufficient link between Trump and the invasion, rather only a refusal to speak out more forcefully against it, which he surely should have done. 

In Trump v. Mazars (2020), the Supreme Court imposed genuine restrictions on Congress’s ability to obtain Trump’s tax records pursuant to its oversight powers, even in a case where executive privilege was not invoked, as it is in Thompson. The most salient difference between Mazars and the current case is that Trump had been a sitting president, whereas today he is a former one. The Supreme Court just skirted the issue of whether the former president could invoke executive privilege to protect his documents now in the hands of the next administration. The Court of Appeals read an opinion of the US Office of Legal Counsel (the part of the Department of Justice that provides legal advice to the president and the executive branch) as giving the sitting president the power to override any claim that the former president made against the release of these documents. But the actual text (which does not seem to have been published in full) appears to suggest a difficult balancing test that could easily end in litigation: “the incumbent president ‘should respect a former president’s claim of executive privilege without judging the validity of the claim[,]’ ” leaving the “judgment regarding such a claim . . . to the judiciary in litigation between the former president and parties seeking disclosure.”

In this case a court could easily find that the balance tips to Trump insofar as the current president has authorized the release of the documents of his chief opponent. Furthermore, the supposed “compromise” between the current president and the January 6 committee over document release is just a collusive effort to expand power for partisan ends.

And the risks here are real. The Circuit Court recognized, as the Supreme Court did in Mazars, that both the congressional power of investigative oversight and the presidential claim of executive privilege are doctrines “implied” from the structure of the Constitution. So, there is surely enough play in the joints of this doctrine to recognize that the incumbent could have strong motivations to embarrass his predecessor in office in order to gain an electoral advantage.

The point of the executive privilege is to encourage candor in office between the president and his chief advisers, which cannot be obtained if the next president can strip the privilege away over these deliberations. The correct rule allows the current president to invoke the privilege on behalf of a predecessor in office, which is what Richard Nixon did when he invoked the privilege to prevent the release of the Pentagon Papers on behalf of all prior presidents. But allowing the sitting president to waive the privilege of his predecessors poses significant political risks that neither court addressed. That power, which should be carefully supervised by courts, applies only to the first tranche of papers.  It is therefore not too late for both courts to fix their earlier decision.