Does Executive Privilege Extend Beyond a President's Term?

President Trump is telling former aides to assert executive privilege to frustrate the congressional investigation of January 6.

The precise contours of executive privilege are far from clear. There are few judicial decisions on the subject, and Justice Department Office of Legal Counsel memos, though informative, are clearly slanted in favor of executive prerogative. Accordingly, Presidents who wish to use the privilege to frustrate legitimate investigations have every incentive to do so, as Donald Trump did repeatedly during his presidency, and continues to do now.

Congressional investigators want information from former Trump Administration officials concerning the events of January 6 and the former President's attempts to overturn the election results. University of Arkansas law professor Lawrence Sacharoff discusses some of the relevant issues in the Washington Post.

The Jan. 6 select committee's investigation has escalated along two main fronts. It has demanded Trump-era documents from the National Archives and subpoenaed his former aides to testify.

In the past few days, former president Donald Trump has objected to both inquiries by asserting executive privilege, in a formal letter to the National Archives and by way of individual letters to each potential witness. He is doing so, he has said, "in defense of the Office of the Presidency."

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?

Professor Sacaharoff argues that materials from a prior administration may still be covered by executive privilege, but that only the current President may assert it. Congress has means of pushing back against recalcitrant presidents who seek to use the privilege to obstruct legitimate investigations, including the ability to hold up nominees, hold back funds, and even threaten impeachment. Former Presidents are immune to such pressures, and may thus be more prone to invoke the privilege for no reason other than to protect their reputations.

These are fair concerns, but I do not think they are dispositive. A current President may be all too willing to allow disclosures that may undermine the reputation of a predecessor of the opposing party, and may not be fully aware of why certain documents or materials raise legitimate privilege concerns. This is likely why the Supreme Court, in the one case considering a former President's privilege, was not willing to dismiss a former President's claims.

A categorical rule barring former Presidents from asserting the privilege would sweep too broadly, but that is the start, not the end, of the inquiry. Just because the privilege is invoked does not mean it should prevail.

In this case, the legislature's interest in obtaining the relevant information is quite substantial. Congress is pursuing an investigation of potentially criminal activity, including efforts to encourage (and perhaps incite) violent action at the Capitol and to overturn the results of an election, and such information should help inform questions such as whether Congress should revise the Electoral Count Act, alter its security protocols, or take other measures to prevent a repeat of the events of January 6.

On the other side of the ledger, we have very little, as detailed in Trump's letter to the National Archives asserting the privilege. Notably absent from the letter is any claim that the documents in question would relate to foreign affairs, national security, or other contexts in which the privilege is at its greatest, Rather, Trump is claiming that the request for documents is overly broad and would infringe upon a President's ability to seek confidential advice. This is lots of hand waving over weak sauce.

The balance here is strikingly parallel to what we saw in United States v. Nixon. Although the investigation here is by Congress, rather than by a prosecutor, the investigatory interests are quite substantial, while the privilege claims rests on diffuse and undefined claims of a need for presidential privacy. Thus, while it would be an error to conclude a former President cannot invoke the privilege, I see little reason why claims of privilege should be sufficient to prevent release of documents to Congressional investigators here.