The Bottom Line
- Executive privilege has been an important shield that gives presidents confidence to do their jobs and has been recognized by the US Supreme Court as “fundamental.”
- Problems arise when presidents have attempted to conceal wrongdoing behind executive privilege, and there is a debate about when it can be claimed, and by whom.
- The same principles governing whether an executive privilege claim is appropriate should govern disputes between current and former presidents and will help keep the privilege in its rightful place.
In the current era of incumbent presidents seeking to prosecute their predecessors, there’s been a critical issue about executive privilege that the US Supreme Court has said is “unprecedented and raise(s) serious and substantial concerns.” That issue is whether an incumbent president can overrule a predecessor’s claim of executive privilege.
The answer to that question should be a resounding “no.”
The Biden administration sought White House documents including emails created during the Trump administration and residing in the National Archives, along with testimony from former White House aides, to pursue criminal investigations related to the Jan. 6, 2021, riot at the Capitol and the 2020 election. After his reelection to a second term, President Donald Trump returned the favor by seeking Biden administration documents and testimony related to various ongoing investigations.
Both efforts to obtain documents and testimony invaded core executive privilege, and the issue was joined: Between an incumbent and a predecessor, who has the right to raise executive privilege? And in the event of a disagreement, who resolves the conflict?
Executive Privilege
For decades, courts have recognized that presidents have important interests in keeping communications and documents related to their presidential duties private.
When presidents make decisions about sensitive policy issues, national security, and other issues, knowing that their deliberations will remain confidential is paramount to their ability to act independently, have frank discussions with their advisers, and consider all information at their disposal. In United States v. Nixon, the Supreme Court recognized that this “executive privilege” is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”
But a president’s executive privilege, for good reason, is far from absolute. When President Richard Nixon sought to use executive privilege to prevent release of the Watergate tapes, the Supreme Court had to decide, as a threshold issue, whether the court could even question Nixon’s claim of executive privilege.
Nixon argued the court couldn’t, because “the separation of powers doctrine preclude[d] judicial review of a President’s claim of privilege.” The Supreme Court rejected that argument, emphasizing that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” And so the court evaluated whether Nixon’s executive privilege claim was meritorious.
In doing so, the Supreme Court determined executive privilege isn’t an absolute protection. The court explained that “[t]he President’s need for complete candor and objectivity from advisers calls for great deference from the courts,” but also that “neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” When there is a countervailing interest in disclosing information, “the legitimate needs of the judicial process may outweigh Presidential privilege.”
In Nixon’s case, the Supreme Court was particularly concerned that the investigation was a criminal one. In criminal investigations, fully developing all relevant facts is imperative because “[t]he ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.” The court also considered that the disclosure in that case would have been limited to “in camera inspection with all the protection that a district court will be obliged to provide.”
Jan. 6 Investigations
But the Biden administration’s and Congress’ investigation of the events surrounding the 2020 election brought into sharp relief a question that hadn’t been addressed: how to resolve a dispute on executive privilege between an incumbent president and his predecessor, especially in the context of a politically charged investigation of the former by the incumbent.
In the congressional investigation into the Jan. 6 events, the House select committee requested documents from Trump’s White House from the National Archives. Trump objected, claiming his documents and communications on Jan. 6 and the surrounding days were protected from disclosure by executive privilege.
Trump asserted executive privilege to prevent those documents from being released, but President Joe Biden disagreed, saying Congress’ “compelling need” to investigate the extraordinary events on Jan. 6 superseded any executive privilege claim.
The dispute made its way through the courts. The US Court of Appeals for the District of Columbia Circuit ruled against Trump. The court held there were compelling reasons to override any claim of executive privilege because of the seriousness of the events on Jan. 6, the relevance of the requested documents to Congress’ inquiry, and Congress’ uniquely weighty interest in investigating an attack against it. This aspect of the court’s analysis tracked the Nixon analysis and its progeny.
But the court didn’t stop there. It said that another reason Trump couldn’t claim executive privilege was because the sitting president disagreed, and Biden’s “careful and cabined assessment that the best interests of the Executive Branch and the Nation warrant disclosing the documents, by itself, carries immense weight in overcoming the former President’s assertion of privilege.”
The court looked to the Presidential Records Act of 1978 for support for its approach. Under the Act, presidential documents are property of the US government—not individual presidents. The Act establishes a process whereby Congress can request access to presidential records, but it doesn’t clearly spell out what happens if a past president claims privilege and the sitting president disagrees.
Different administrations adopted various interpretations. Under some approaches, an incumbent president could override a former president’s privilege claim, but only if the incumbent president thought the discharge of his or her constitutional duties required disclosure. But another approach, adopted by President George W. Bush, required permission from both a former and current president for a former president’s records to be disclosed.
The most recent regulations were promulgated during the first Trump administration. Under those regulations, if a former president asserts privilege, the archivist responsible for presidential records must consult with the incumbent president. If the incumbent president disagrees or fails to make a decision in 30 days, the archivist must disclose the records within 60 days unless a court orders otherwise.
Trump asked the Supreme Court to stay the DC Circuit’s order releasing his records. The Supreme Court denied the stay, but it issued a short—and unusual—order. It said that “[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns.”
Though the DC Circuit had answered that question—saying an incumbent president could override a former president’s claim of executive privilege—the Supreme Court said those portions of the lower court’s opinion were “nonbinding dicta.”
Balancing Privilege
If the DC Circuit is right and the sitting president’s view always comes out on top, executive privilege becomes a time-limited protection that evaporates at noon on Jan. 20 as the president leaves office. As Justice Brett Kavanaugh wrote in his statement supporting the Supreme Court’s order in the Jan. 6 records case, this would “eviscerate the executive privilege.”
“Without sufficient assurances of continuing confidentiality” of records after a president leaves office, “Presidents and their advisers would be chilled from engaging in the full and frank deliberations upon which effective discharge of the President’s duties depends.”
Allowing the incumbent to override unilaterally his predecessor’s executive privilege claim is also contrary to the principle adopted by the Supreme Court in Nixon: Allowing an incumbent carte blanche to determine the scope of his predecessor’s executive privilege essentially is no different than allowing the incumbent free reign to determine the scope of his own privilege claims.
This is especially true considering the increasing acrimony between subsequent presidential administrations.
For instance, in the recent congressional investigations into whether Biden was suffering from a cognitive decline during his final years in office, the Trump White House has preemptively determined that executive privilege should be waived—with no regard to what the former president thinks.
But, consistent with Nixon and its progeny, neither the former nor the incumbent should possess an inviolable claim to executive privilege. The standards and the process already exist within the judiciary for examination and adjudication of such claims. Both presidential antagonists can submit filings delineating their positions on the conflict, but the final arbiter should rest where it always has—within the court system.
The Presidential Records Act provides some guidance about how courts might take into account different factors—such as the age of the records in question or the topics they are about—when balancing the former president’s privilege claim against the public’s interest in disclosure.
Under the Act, former presidents are given more leeway to prevent documents that concern sensitive topics from being disclosed, including confidential information, national security, private personnel files, and more. That makes sense and allows a former president to have some discretion about exerting privilege over information that he or she might consider to be more sensitive—and might be uniquely sensitive to a former president in the case of private and personnel files—than it would be to a current president who might not share those same sensitivities.
The Act also considers the age of the records. If the records are fewer than 12 years old, a former president can prevent public disclosure. But beyond that, a former president’s ability to prevent disclosure diminishes.
Considering the age of the records also makes sense. The older presidential records are, the less likely they are to contain sensitive information that could undermine a president’s ability to perform their duties. And if sitting presidents know their records are protected from disclosure for at least several years, that potential disclosure is less likely to affect whether the president feels free to consult with advisers frankly.
As congressional and Justice Department investigations into prior presidential administrations escalate, figuring out the bounds of executive privilege becomes increasingly important to ensure that the careful balance between a president’s ability to fully carry out their duties and the public’s interest in having access to presidential records is maintained. The courts have already outlined how that balance should be calculated, and we should leave it to them to continue making those determinations.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Author Information
Richard A. Sauber is a partner at HSF Kramer and former special counsel to President Joe Biden.
Shikha Garg is an associate and litigator at HSF Kramer who handles trial and appellate matters.
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