Former President Donald Trump will likely fail in most of his executive privilege claims against a congressional committee investigating the Jan. 6 Capitol riot, but the committee’s overreach could result in an unfortunately protracted court battle.
Long-standing court precedent holds that executive privilege is real but limited. Precedent and custom also hold that the privilege usually ends when a president leaves office unless the current president, protecting institutional prerogatives, asserts it on whatever particular matter is specifically at issue.
In the case of the Jan. 6 committee’s demands, President Joe Biden has refused to back Trump’s privilege claims. The National Archives, therefore, plans by Nov. 12 to turn over all materials requested by the committee unless blocked by a court order. Trump filed suit to seek such an order.
The Supreme Court has never explicitly ruled on executive privilege disputes between a president and Congress. Yet in the famous Watergate-tapes case of United States v. Nixon, it ruled against the president with regard to interbranch prerogatives against the judicial (rather than legislative) branch of government while laying out a general marker on the limits of executive privilege.
“The interest in preserving confidentiality is weighty indeed, and entitled to great respect,” wrote the unanimous court. But it also wrote, “No case of the Court, however, has extended this high degree of deference to a President’s generalized interest in confidentiality.” Instead, the privilege nears absolute status only with regard to “a claim of need to protect military, diplomatic, or sensitive national security secrets.”
Trump makes no such particularized claims. And, as noted earlier, Biden has not backed the claims Trump has made. That’s why the House committee on the Capitol riot is likely, in the long run, to be able to access most of the relevant Trump records it seeks.
The key word there, however, is “most.” Trump’s suit raises an important argument against which the committee unwisely has left itself open. Just as executive privilege must be particularized rather than generalized, so too must Congress’s subpoena power with regard to presidential records. Usually, that authority to pierce the Constitution’s separation of powers may be exercised only in pursuit of a legislative purpose.
Here, the committee’s subpoena is a mixed bag. On the one hand, Trump is wrong to say there is no legislative purpose in investigating the White House’s actions in pushing the lie that the election was stolen, in fomenting the conditions for the riot, and in refusing for hours to help stem the riot adequately once it began. Congress has every reason to secure information that could help it legislate better safeguards for its own constitutional proceedings.
On the other hand, the congressional demand for information is absurdly broad. As Trump’s lawsuit notes, one committee demand is for “[f]rom November 3, 2020, through January 20, 2021, all documents and communications related to prepared public remarks and actual public remarks of Donald Trump.”
All documents for [any] public remarks for 78 days? Really?
Without specifically limiting the demand to materials related to the election challenge (such as it was) or the riot it catalyzed, the committee’s demand is exactly what the Trump lawsuit portrays: “nothing less than a vexatious, illegal fishing expedition.” And, again accurately, the suit asserts that “the Committee’s requests are unprecedented in their breadth and scope and [in some ways] are untethered from any legitimate legislative purpose.”
If the committee would narrow and specify its demands to be directly relevant to its mission, Trump’s privilege claims would be laughably weak. Because of the committee’s egregious overreach, though, Trump may well be able to win a series of injunctions and extended court battles to force a narrower scope. The nation needs answers and solutions with dispatch, not a political and legal pitched battle. By setting up a battle in which both sides are in certain ways outrageously wrong, both Trump and the committee badly serve the public weal.
