Laurent Sacharoff is a law professor at the University of Arkansas School of Law.
President Biden has said that the extraordinary circumstances of the Jan. 6 inquiry justify waiving claims of privilege, at least over the archive documents. As for witnesses, Biden has hinted that he will not assert the privilege over most information central to the inquiry into the Jan. 6 attack.
These inconsistent positions raise two questions: Do former presidents have constitutional authority to invoke executive privilege to keep private their communications with top advisers? If so, what happens if the incumbent president disagrees and they end up in court?
The answer in this murky corner of constitutional law isn’t entirely clear — executive privilege itself isn’t mentioned in the Constitution and there have only been a few Supreme Court cases on the subject.
My view is that a president’s ability to invoke executive privilege ends with the presidency. After all, the framers were crafting a chief executive whose power was limited in tenure, unlike the British monarch. As a practical matter, the incumbent president’s interest in safeguarding the institutional interests of the presidency should provide sufficient protection.
But here’s the problem for those who would dismiss Trump’s assertion as frivolous: During an analogous conflict involving former president Richard M. Nixon, the Supreme Court decided in 1977 that a former president does retain some right to invoke the privilege. That case created a dangerous tool for former presidents to delay valid investigations, including into their own conduct, as with Nixon then and Trump now.
The Nixon case involved an agreement with the General Services Administration that would have allowed the former president to control and eventually destroy the tapes. Congress quickly passed a measure, signed by President Gerald R. Ford, requiring that the tapes be catalogued, screened and made public. Nixon, asserting executive privilege, sued to prevent government archivists even from reviewing the material.
The Supreme Court rejected the argument that only a sitting president has the authority to invoke executive privilege — a privilege it had recognized for the first time just three years before, in ordering Nixon to turn over his tapes to the Watergate special prosecutor.
Those providing confidential advice, the court said in the 1977 case, must feel some certainty that the privilege will continue beyond a single president’s four-year term. So far, so good.
But the court then wrongly concluded that a former president must therefore retain some right to assert the privilege. It ignored the obvious resolution: The privilege can survive even if a later president must be the official who asserts it. Indeed, subsequent presidents have routinely asserted executive privilege on behalf of predecessors, including those from the opposing party.
The main limit to executive privilege only can work with sitting presidents. The battle between Congress and the president, checks and balances, allows Congress to limit assertions of executive privilege through their powers over the president. It can refuse to confirm his nominees, ratify his treaties or pass his budget priorities. It can impeach him; one article of impeachment against Nixon concerned his refusal to produce evidence.
Trump’s assertion of executive privilege demonstrates the problem with allowing former presidents to exercise this authority. He has no reason to faithfully weigh, as an elected official would, the need of the public to understand the Jan. 6 attack against the need for confidentiality. Congress has no leverage.
Even if Trump has the authority to assert executive privilege, that’s not the end of the story. A president’s assertion of executive privilege isn’t absolute; it can be overcome by the need for the material, as demonstrated in the tapes case. Likewise, in the 1977 Nixon case, the court considered — and rejected — the privilege claim.
The real harm lies in delay. It took decades of litigation, even after Nixon’s death, before all the White House tapes were released. It could take courts years to address Trump’s executive privilege claims, especially if required to review individual documents and witnesses.
The best outcome, should Trump’s assertions of executive privilege reach the Supreme Court, would be for the court to overrule itself and hold that former presidents can never assert executive privilege. It’s far from clear that would happen. Justice Brett M. Kavanaugh, as a lawyer in the George W. Bush White House Counsel’s Office, drafted an executive order providing generous procedural rights to former presidents — and even their heirs — to invoke privilege.
In the past, presidents have found a compromise. Representatives for President Barack Obama and George W. Bush allowed the former president’s lawyers to assert privilege in a limited fashion that did not cause delay. It’s harder to imagine that happening today.
