Trump Administration

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.

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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.

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  1. "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."

    Funny how the 'legitimate investigations' kept coming up empty.

    1. I mean, if all you ingest is rightwing bullshit daily, of course you'd think that.

      1. I'm sure that, as a consumer of the opposite polarity of bullshit, you'll be able to identify how productive those investigations were.

      2. Really?

        So, do tell, which of those "legitimate investigations" came up with crimes by Trump, and what were the crimes they found?

        I'm sure you must have a whole list, right? With links, right?

        1. The Mueller investigation produced multiple indictments, guilty pleas and convictions along with substantial evidence of Presidential wrongdoing, prosecution of which have been deferred until the President left office per DOJ policy.

          1. It’s been nine months. When might they start prosecuting these crimes?

            Several indictments, sure, but lying to the FBI ain’t something that gets anybody’s panties in a wad.

            1. Plenty of people in long-term jail for § 1001.

              1. Well Papadopoulos got some jail for telling the FBI, as he had told Trump, that he met Mifsud before rather than after being named a Trump asdvisor.

                And for lying to the FISA court to keep the surveillance of Carter Page and everyone within two "jumps" of him (i.e., everyone Trump) under wiretap, which you might think was rather more consequential, FBI attorney Kevin Clinesmith was slapped on the wrist with a wet noodle.

                Funny how that worked.

                1. ...you expecting "long term jail" for Sussmann?

                  1. I'm not talking about the politically connected. I'm taking issue with the statement 'lying to the FBI ain’t something that gets anybody’s panties in a wad.'

                    Sorry, not joining you in debating right-wing nonsense that's been debunked. You mention Papadopoulos in the same breath you claim Carter was why the FISA Court made it's decisions. You have all the pieces, but veer off the facts.

                2. and everyone within two “jumps” of him (i.e., everyone Trump) under wiretap,

                  That's not what "wiretap" means.

          2. You could turn up as many indictments pointing that much in the way of prosecutorial resources at any random group of politicians in DC. Heck, putting the current President's son in the slammer would be a trivial job. And Muller conveniently didn't have to prove any of his claims of Presidential wrongdoing.

            1. The everybody does it defense is just handwaving. The Mueller report discussed why this was different.

              1. The Meuller report turned out to be a big zero.

                You have to be pretty delusional to think otherwise.

                But merely paertisan to CLAIM otherwise.

                As to the "legitimacy" of THIS "investigation", the BIDEN FBI already admitted there was no coordination to speak of https://news.yahoo.com/exclusive-fbi-finds-scant-evidence-100621499.html , and didn't we already have a bogus impeachment over this? Is this an admission that "impeach first, investigate later" was the process?

                1. The Meuller report turned out to be a big zero.

                  I think you're confused between the report and what the report sounded like after AG Barr had "summarised" it.

    2. Are you refer to the many Benghazi investigations or the fruitless search for voter fraud?

  2. That should not, by the way, be read as saying that Trump's claims should prevail here. Just that I don't grant that the investigations we're discussing here are as above board and honest as Alder would like to pretend.

    1. I can’t see a legitimate claim that Trump has to shield information in this instance. Hard to tell how above board the investigation is given how quietly it’s currently being conducted. Is there a chance in devolves into partisan hackery? Sure. But it hasn’t until it does…..

      1. I think you have to start out by asking if there's a legitimate claim for the information, rather than a legitimate claim to keep it private. The burden is on the one who wants to intrude.

        But in this case, I think there'd be less basis for objecting if the Democrats hadn't hand picked the Republican members of the 1-6 committee, in addition to their own members. Trump has to know that there is literally nobody on that committee who doesn't hate his guts.

        I expect they'll interview the witnesses in closed session, then publicly lie about what they said on in public; That was what they did in previous cases.

        That said, you'll maybe notice that I don't support Trump's claim of executive privilege here? Whether or not Biden's motives for waiving it are suspect, Trump isn't President anymore, so it's not his to claim.

        1. "there’d be less basis for objecting if the Democrats hadn’t hand picked the Republican members of the 1-6 committee, in addition to their own members"

          You just set up a classic Catch-22. The only reason the Democrats chose the Republican members is that the Republicans declined to participate. Remember there was going to be a bipartisan, balanced committee, but the Republicans shot it down.

          1. The Republicans declined to participate because Pelosi decided that she was entitled to pick who the Republicans got as committee members.

            McCarthy pulls his 5 GOP members from 1/6 committee after Pelosi rejects 2 of his picks

            That the minority party gets to pick their own committee members is long established.

            1. She rejected picks that supported the Jan 06 insurrection, which is pretty hard to argue.

        2. I'm a Congressional Supremacy guy, myself, but the justification offered for Presidential Priv doesn;t depend on who the current officeholder is. Trump's claims are defininitely not Biden's to give away.

        3. I think you have to start out by asking if there’s a legitimate claim for the information, rather than a legitimate claim to keep it private. The burden is on the one who wants to intrude.

          You must have misread. "Privacy" and "intrusion" is not the issue here. The discussion is about executive privilege.

  3. Executive privilege is too ripe for abuse. It seriously needs to be cut down OR we can get a Congress worth half a shit that actually feels like doing their job.

    Fat chance of either happening though.

    1. I actually agree. There are problems at both ends.

      I'd actually identify the primary problem being at Congress' end of things; Constitutionally, we have a system of mild legislative supremacy. Congress can remove Presidents, for instance, but Presidents can't remove members of Congress.

      The aggrandizement of executive power, therefore, has to be regarded as a failure of Congress, they had the tools all along to counter it, they just didn't bother.

      I think they were glad to give up a lot of power, so long as they could ditch the responsibility with it...

      1. While I agree with your diagnosis, looking for which branch to blame does not matter. The question is how to realign incentives to fix it.

        1. There is no fixing it short of burning the entire system to the ground and starting over from scratch.

          At this point we simply have to live with it until it gets so bad that a majority of the population agrees that living with it is worse than burning it down and starting over from scratch.

          1. Sadly, I think you're right: It's really too late at this point to fix our government. Our job at this point is to identify why things went wrong so that the next version of government won't incorporate the same mistakes.

            1. But how do we keep from making entirely new mistakes?

              1. Probably we don't: That's the best you can hope for in life, that your mistakes will be novel, instead of repeating the same old ones.

          2. The system design is fine. The problem is the people we’ve been populating it with for the last decade or two. Around 90% of them are incompetent buffoons.

            The media that describes everything to us is also a huge problem, but that one is self correcting as people tune them out.

        2. It matters, because you have to ask who has the power to fix it. In this case, Congress. Yes, incentives need to be realigned, but it's Congressional incentives.

          The desire to exercise more power is a natural character of people who seek executive positions; You don't do it to be powerless. This situation didn't arise because executives suddenly began trying to extend the reach of their power, but instead because Congress ceased opposing those efforts. Unless you address why Congress stopped opposing executive over-reach, you can't do anything about it, because you won't have Congress on your side.

          1. Who is to blame is not the same as who could fix it. The President can absolutely create internal controls to constrain his power.

            Later Presidents may not be formally constrained by those controls, but you can make it politically costly.

            Similarly, the judiciary often deals with areas of separation of powers, and has been overly kind to executive expansionism, and on external controls (investigations, subpoenas, immunities, etc).

            Heck, the People could advocate for an Amendment to fix things if there was the will.

            This is not an issue about which we need to throw up our hands because Congress sucks.

            1. "Who is to blame is not the same as who could fix it."

              In this case it is.

              "The President can absolutely create internal controls to constrain his power."

              Yeah, and bank robbers could refrain from robbing banks. But we don't rely on that to prevent bank robberies.

              Our system isn't set up to rely on people restraining their own abuses. It's set up to oppose ambition with ambition. Congress is supposed to be the one restraining the President, not the President. (Though in an ideal world that we don't live in, Presidents wouldn't need restraining.)

              The problem is that Congress doesn't particularly care to restrain Presidents, because making policy means taking blame if it goes bad, and they don't really need to retain too much power to keep the graft flowing.

              1. Our system isn’t set up to rely on people restraining their own abuses.

                It's not either or. Honor was a big thing through a lot of our history, and was very much an internal control. If you want to roll originalist, that was absolutely contemplated by the Founders.

                Both personal and systemic internal controls are not disallowed by separation of powers. you can have. A system can have all three. You're setting up a single point of failure for no need.

                I have to do compliance on internal controls checks every year in my agency.

                1. Honor may have been a big deal during much of our history, but they still didn't think the honor system was a smart basis for government.

                  1. You can't switch from originalism to prudentialism like that. You appeal to how our system was 'set up' and then switch to how good systems should be run.

                    Thus you answer an argument about the first with a rejoinder about the second.

                    Pick a lane.

        3. Sarcastr0, I suggest the fix could come with SCOTUS recognition that the impeachment power was not intended to be constrained by separation of powers doctrine. The key to an effective power for Congress to investigate the executive branch is to get the process out of the courts. Absent that, a resistant President supported by a collusive, filibuster-empowered Senate will always run out the clock by defying subpoenas.

          On what basis could anyone argue that separation of powers and SCOTUS review should not apply? Simple, impeachment is plainly a reverse face of the sovereign constitutive power of the People to elect the president. Arguably, that makes impeachment a sovereign constitutive power as well, albeit one which the People delegated to Congress in the Constitution. Note that the super-majority requirement in the Senate for conviction supports that reasoning, being similar, for instance, to the super majority requirements for other sovereign-like delegations, such as the treaty power and the amendment power.

          On that basis, put beyond appeal to the courts all congressional subpoenas consequent to impeachment investigations. Reassert the ancient doctrine that the sovereign power is absolute, and that the People, not the government, nor even the courts, control the constitutive power. In every impeachment investigation, Congress will be held to be doing the People's will, and each house of congress will be separately empowered as to exercising investigative initiative.

          That would be sweeping power indeed, and would have to be appropriately constrained within congress. Certainly the first step toward constraint would be to restrict such sovereign subpoenas to impeachment investigations only. It might prove desirable to require some kind of further constraint, implemented by congressional rules.

          1. That ship has sailed. We've already seen intimations of how low a bar Congress can set for impeachment, and to constrain subpoena's to impeachments will merely mean that everything will have to be an impeachment. And what about investigating things where what the Prez did doesn't rise to the level of what many think is required for "high crimes and misdemeanors"? No investigations of mere maladministration?

            And you anyway can't impeach Trump again, at this point.

            1. The Democrats haven't accepted that yet.

              I believe their current plan, (based on discussions I've seen at various left wing legal blogs.) is to use the January 6th committee to issue a Congressional 'finding' that Trump engaged in insurrection. Then in 2024 they'll invoke Section 3 of the 14th amendment: "No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

              Where they control ballot access, they'll refuse to let him be on the ballot, and then they'll challenge the validity of his EC votes after the election.

              And the purpose of the commission is just to provide a hook to hang the Section 3 claim on.

              1. Yes, public left wing blogs are the place where DNC tactics are born.

              2. But why would they need a select committee of the House to execute this plan?

                Is there evidence this will work?

                Can you provide a hyperlink to the original argument on the left wing blogs?

      2. Our Constitution limits the power to remove an individual from a position to only the Congress and really only the Senate for alternate branches. The Senate through impeachment can remove not only a President or a judge. Congress can remove its own members. I think was done because this branch has the ability to deliberate the question. There is no deliberative method for a President to remove a member of another branch.

        1. SCOTUS claimed it could force the House to seat Adam Clayton Powell.

  4. In this case, the legislature's interest in obtaining the relevant information is quite substantial.

    Really ?

    Congress is pursuing an investigation of potentially criminal activity

    Why would any think it sensible for Congress to investigate crimes ? Isn't that an executive branch thing ? Is this an acceptance that the FBI no longer investigates criminal activity, but only instigates it ?

    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.

    This is nonsense. Congress saw that a crowd was able to invade the Capitol and disrupt the electoral count. It doesn't need to know anything at all about what schemes the Trump administration did or did not cook up to instigate these events in order to decide what to do about Capitol security or about the Electoral Count Act.

    If Congress had any serious worries about the Electoral Count Act it would have passed a new law months ago, with overwhelming bipartisan support. This is simply a pretext to try to get political enemies onto the hot seat, unprotected by any of the procedural rules that would protect them in court.

    1. Really ?

      Really.

    2. "This is nonsense. Congress saw that a crowd was able to invade the Capitol and disrupt the electoral count. It doesn’t need to know anything at all about what schemes the Trump administration did or did not cook up to instigate these events in order to decide what to do about Capitol security or about the Electoral Count Act."

      When did you decide to give away your integrity?

      We don't need to know to what extent Trump or any of his cronies had anything to do with instigating such events?

      Just...GTFO. Don't even bother pretending like you care about the country or the rule of law if that's the argument you're going to put forth.

      1. Trump had as much to do with the penetration of the Capitol on Jan 6th as you did, sitting on your brains in front of the iudiot box.
        https://news.yahoo.com/exclusive-fbi-finds-scant-evidence-100621499.html

      2. We don’t need to know to what extent Trump or any of his cronies had anything to do with instigating such events? Just…GTFO. Don’t even bother pretending like you care about the country or the rule of law if that’s the argument you’re going to put forth.

        1. Take an indigestion pill, I beg you. Possibly two.

        2. Imagine some dastardly deeds committed by Trump in connection with the 6 Jan shenanigans. We will stipulate your imagination to be 20-20 accurate. Now specify the amendments you'd like to see to the Electoral Count Act to take account of the dastardly deeds committed by Trump, and to prevent them ever being repeated.

        3. Now we'll stipulate that your imagination is entirely wrong in its suppositions, and Trump did squat. But you can still imagine those dastardly deeds - in your mind you can conjure the possibility that a President, sometime, somewhere, might commit them. How would your proposed amendents to the Electoral Count Act differ from those you proposed at point 2 ?

  5. This privilege can be likened to spouse/religious/doctor confidentiality which laws and courts recognize.

    Under U.S. federal common law, the spousal testimonial privilege is held by the witness-spouse, not the party-spouse, and therefore does not prevent a spouse who wishes to testify from doing so.[6] The rationale of this rule is that if a witness-spouse desires to testify against the party-spouse, there is no marital harmony left to protect through the obstruction of such testimony. This common law principle is the view in a minority of U.S. states. A majority of U.S. jurisdictions, however, do not follow U.S. federal common law; in most states, the party-spouse, and not the witness-spouse, is the holder of spousal testimonial privilege. (Wiki)

    So the current question falls to who holds the privilege: the former or the current president.

    And what if the former president is dead, e.g. who holds the privilege for President Washington?

    I think in light of the second question, we can answer, the privilege is held by the former if they're living; otherwise it's the current president.

    1. I mean...maybe it can be likened to that. But also maybe not. Like all analogies, it's not perfect and I think there are very important differences between spousal testimonial privilege and executive privilege. Would like to see a more comprehensive argument why the similarities are greater than the differences rather than it just being asserted.

      But arguendo, accepting the analogy, why would the federal executive privilege be different than the federal spousal testimonial privilege? It's asserted by the sitting President (i.e the witness spouse, in this example) and not any former Presidents (i.e. the party-spouse)?

      Why is it that, "in light of the second question," we are able to determine "the privilege is held by the former" President (but only if alive)?

      I just think the whole analogy starts to fall apart.

      To put my cards on the table, I came into reading Professor Adler's post thinking it's obvious and uncontroversial that executive privilege resides fully and solely with the sitting president (duh!). But after reading his post, I've come to think I was wrong. It's a complicated issue and I don't think the answer is obvious or easy. Now I'm just not sure what I think. Professor Adler - more analysis please!!

      1. I think I'm still in the "fully and solely" position; Constitutionally, former Presidents are... just people, they have no special legal status. While the current President is head of a co-equal branch of government.

        1. Yeah I think I'm still leaning that way. But I'm less confident in that position than I was before reading this post; it helped me understand some of the complexities here.

          ReaderY below has a great point: the privilege belongs to the Office, not the individual. Conversely, the spousal privilege (as posited above) belongs to the individual spouse. Hence why I think the analogy breaks down pretty quickly.

          1. Even the spousal privilege can be construed to only apply to the spouse ~in their "official" position as spouse~, as the privilege generally (as far as I remember from law school) does not survive divorce. Once the person's duties and responsibilities within the marital relationship terminate, they can no longer assert the privilege, because they no longer retain an institutional interest in it.

            Construed as such, the analogy to executive privilege actually fits closer than I originally thought. It is the institution the common law is interested in protecting, and once a person is no longer a part of that institution, the reason for the privilege evaporates.

        2. It doesn't matter that Trump is now a private citizen. His claim to Presidential privilege isn't based on his own privacy concerns, but on the assertion that a President is entitled to unfettered advice. That Biden is drooling in his ice cream rather than getting advice (Kerry's admission that no one talked to him about the submarine deal with AU putting FR's nose out of joint is revealing) and that there is no priivacy of advice to protect is aberrant.

          1. I don't agree with you.

            But arguendo, Trump's claim is based on "the assertion that a President is entitled to unfettered advice." Got it. But Trump isn't the president. Under this logic - that you set forth - why is Trump entitled to prevent the current President from releasing documents in the current President's possession?

            1. I think the argument is that people won't provide unfettered advice if they know it may become public once the current President leaves office.

    2. Absolutely not. All these privelges are personal priveleges of an individual. Executive privelege is privelege of the office.

      Trade secrets are the better analogy. Once you leave a company, you lose the ability to assert its trade secrets. The reason is that trade secrets belong to the company, not you.

      Same here. Executive privelege is the privelege of the executive branch of the U.S. government. It belongs to the U.S. government, not to any individual.

      It is public property.

      1. Two differences.

        In most corporate privilege situations, you do not have elements in the company actively hostile to current and former members. In politics, this is a matter of course.

        Secondly, privilege does not stop retroactively because of a cessation of the association. A person is not mind-wiped of trade secrets when they leave a company. A lawyer who quits is not suddenly able to testify against their former client.

        Trump cannot exert his privilege for things done now. However, I see no reason to believe that he cannot exert the privilege for things done during his term of office even if the questions are asked later. To claim otherwise changes this privilege into a time bomb.

        1. Ehhhh I'm not really with you on the first point. In most corporate privilege situations, you DO actually have elements hostile to each other: the former employee and the company itself. These situations arise in court precisely because you have those two elements (and sometimes more) opposing each other.

          On your second point, are these privileges similar to Executive Privilege in crucial respects? I agree that for certain privileges, cessation of the association doesn't change the privilege (e.g. attorney-client). But why does Executive Privilege have to work in that manner?

          (Obviously, it doesn't HAVE TO work that way, but why should we understand it to be legally interpreted in that manner?)

          In this respect, I think the analogy of spousal privilege might actually work a bit better. (States differ but federally) it's triggered only for things that occurred during the marriage and not before or after. It's exercised by the testifying spouse and not the defendant spouse (e.g you as criminal defendant can't use "spousal privilege" to shut up your ex if that person is voluntarily testifying against you).

          So again, all these different privileges work slightly differently and are not perfect analogies for Executive Privilege. They're all similar in some respects.

          But at least to me, they all have crucial differences that make these analogies of limited use.

          1. "(Obviously, it doesn’t HAVE TO work that way, but why should we understand it to be legally interpreted in that manner?)"

            As I said below, both privileges are aimed at protecting the ability of one party to seek advice candidly from another (presumably expert) party without fear of disclosure. If a client's communications with his counsel could be revealed once the attorney-client relationship ended, then the protection of the privilege would be weak indeed. Same for Executive privilege.

            1. Assume we accept your premise about the objective of both privileges.

              Is there a limiting principle? It's totally plausible to me the President might solicit information and require documents to be developed with the objective of developing a robust record upon which the best decision possible under the circumstances can be made. Is all of that protected? Is the information contained in the memories of former aids covered by this? Can the President (or any President, current or former) use this privilege to limit the First Amendment rights of others?

              It's a huge black hole. It's a black hole EVEN IF you accept the premise about the purpose of the privilege.

              1. If it operates as does the attorney-client privilege, the answers are (a) yes, records used to support the advice can well be privileged;
                (b) yes, their memories are privileged
                (c) the right of the advisors to speak is circumscribed, just as an attorney's is. An attorney cannot use the First Amendment to reveal client information.
                Not sure why this is so astounding.

          2. It’s exercised by the testifying spouse and not the defendant spouse

            Since the idea is to make sure that the advisors can give unfettered advice maybe it is they who ought to be able to object to disclosure? Not sure how this would work... but something better than leaving it up to an adversary is needed.

            1. Since the idea is to make sure that the advisors can give unfettered advice maybe it is they who ought to be able to object to disclosure?

              That's certainly not the way a-c privilege works. The attorney has no say in the matter; only the client can decide whether to assert the privilege.

              1. True, but the attorney has a duty to raise the privilege until the client waives it. You cannot subpoena an attorney and ask, "So what did your client tell you when you met on August 25th?"

                1. Right, but that's just a placeholder objection. If the client is consulted and says, "Go ahead and answer," the attorney can't continue to raise the privilege.

        2. Is Trump the 'executive' right now? No. Therefore he cannot assert executive privilege.

          1. When Bide/Harris goes in the toilet you position will, predicatably, change.

        3. If the executive thinks that disclosing embarassing information about a former president is worth the risk that nobody will talk to a president again, it’s the executive provelege to take that risk and do so. It’s the President’s job, not the courts’ job, to protect the dignity, integrity, and functionality of the office.

          If a particular President is more interested in screwing his personal enemies over than any of that and simply doesn’t care, it’s none of the courts’ business.

          It is the job of the Electors to elect presidents who don’t shit in their pants or on their office.

          It’s not the job of the courts to change diapers for presidents who do.

          The the only protection avainst a president who discloses public confidences to get at personal enemies is not to elect such a person. Legal secrets can be subject to impeachment.

          But executive privelege is, by definition, at the president’s discretion.

          That’s why character is of considerable importance in selecting presidents.

          I don’t buy this idea that everybody knows presidents are never toilet trained and always shit all over the floor, so of course courts have to come in and wipe up after them and make sure they don’t soil everyone else.

          If the sitting president waives executive privelege, executive provelege is waived. It’s solely the sitting president’s job, nobody else’s, to consider the long-term integrity integrity of the office. If the sitting president lacks integrity, tough shit for the country.

          1. If the executive thinks that disclosing embarassing information about a former president is worth the risk that nobody will talk to a president again, it’s the executive provelege to take that risk and do so. It’s the President’s job, not the courts’ job, to protect the dignity, integrity, and functionality of the office.

            I don't recall this being anyone's position when Ford was in charge and the executive whose privilege was in question was Nixon.

            Who, whom.

      2. Not sure you are right. However, following the analogy to attorney client privilege (which I think is a good analogy, see below), where an attorney represents a corporation, the corporation owns the privilege. That means it can waive it over the objections of its officers. This often comes up when new management comes in, especially after a hostile takeover. The privileged conversation that Attorney X had with former Corporate President Y, can now be waived by the Board or New-President Z.

    3. Wrong.

      If we were to follow your analogy, then the aids being called to testify hold the privilege.

      Now, the current Executive has an interest in blocking any testimony, on the grounds that if it happens here, it can happen to them in 4 years.

      But they have no legitimate interest in forcing the testimony

      1. Inasmuch as the testimony is by the aides the purpose of executive privilege is indeed best exercised by the aides, the better to free them from scruitiny that might affect their advice at the time.

        That this is not the way it's been does not obviate the observation that that is what best aligns with the claimed purpose of EP.

        I think it's all bunkum anyway. I don't believe in a scintilla of EP.

    4. "And what if the former president is dead, e.g. who holds the privilege for President Washington?"

      Isn't that a moot question? Who is left to testify against Washington from first hand knowledge?

      1. Yes, but there are more recently deceased presidents for whom it may still matter.

    5. "This privilege can be likened to spouse/religious/doctor confidentiality which laws and courts recognize."

      Why not attorney-client privilege, to which it is most similar? Both exist to facility someone seeking candid advice from somone else..

      1. But is the client the "company" or the executive in this case?

        1. The company.

        2. Yes, that is the rub. You can make a strong argument that, as for the attorney-client privilege in the corporate context, the Executive Privilege belongs to the institution, not the individual holding office. New officeholder can waive it.

          But, of course, the Executive should carefully consider the precedent he is making. The current Administration has been making noises that this situation is unique. Don't believe it. If they waive the privilge, and a Republican gets into office next time, they will not hesitate to waive the privilege if it is politically advantageous.

  6. From having lived a bit of history, I remember that the correct phrase is "I have no recollection of those events as you have described them Senator."

  7. The attorney-client privilege extends beyond the grave.

  8. In the United States, government office is not personal property.

    Executive Privelege is solely a privelege of the office, not the person holding it. Only the current officeholder has standing to assert it. If there aren’t sufficient PUBLIC interests to maintain it across administrtions, it has no basis.

    1. 1: The Roman Republic ended when it was established that once an elected official left office, his successor would feel free to go after him for his actions in office.

      2: If there's actual criminal activity to be investigated, then one of two things holds:
      A: The current Executive is on the side of the crime, in which case Privilege won't be waived
      B: The current Executive is opposed to the crime, in which case Privilege doesn't need to be waived, because the FBI will be investigating the crimes.

      Which is the job of the FBI, not political hacks in Congress. (See Constitutional prohibition of "Bills of Attainder")

      So, leaving aside the reality that the entire "investigation" is a circle jerk wankfest by delusion fools, there can still be no legitimate reason to demand the Privilege be tossed

      1. 1: I would advise against emulating Rome in this regard. This policy directly led to the fall of the Republic, as one of Caesar's impetuses for crossing the Rubicon was that his political opponents promised to arrest and prosecute him if he ever lost executive privilege of his consulship or governorship.

        2: Just like legal privilege does not include criminal conspiracy with your lawyer, executive privilege does not include criminal conspiracy with the aides. However, in both cases, you need to have some pretty darn serious evidence to show that a conspiracy existed in order to pierce the privilege.

        Here, I've seen nothing aside from Trump genuinely believing he couldn't have lost and then yelling about it. There was no evidence that the capitol riot was organized or planned (if anything, the deliberate understaffing of the capitol on Pelosi's orders is the suspicious part). The complete and utter ineffectiveness of the riot, as well as videos that showed the vast majority of people in the Capitol were milling about doing nothing, belies the idea that any conspiracy to overthrow the government.

        There's no probable cause to pierce this privilege. If you disagree, show me the money. Why do you believe there is anything to find? Where is your probable cause?

        1. Pelosi is not the one in charge of staffing the capitol police. McConnell is just as important. And both had delegated that duty down. Maybe a bad idea, but nothing sinister at that level.

          Trump trying to strongarm the Vice President, the DoJ, and state governments to lie on his behalf is not some innocent act, and has been confirmed in multiple incidents.
          I don't care if you thought you were right, leaning on people to agree with your radical plan to blow up our transfer of power is big trouble, and deserves a look to see who was complicit and how far it ran. So far, it looks like it was a close thing and we should figure out how to not let that happen again.

          I'm not too optimistic we'll avoid similar trouble in 2024

        2. There was no evidence that the capitol riot was organized or planned

          I see we're back to "Let’s prevent an investigation and then claim there's no evidence."

          1. The FBI's been abolished ? Musta missed it.

            But well done Joe !

          2. "I see we’re back to “Let’s prevent an investigation and then claim there’s no evidence.”"

            Ah, you mean like with election audits?

            If there was a riot / insurrection planned, we'd know it from the hundreds of dead Democrat members of Congress.

            Since not even one of them was shot, and none of the "rioters" were armed with guns, we know that's all bullshit.

            Of course, that's because we actually have, and use, brains

      2. Both this and the article presuppose a lie, which is that there was an insurrection on January 6. Everyone knows that in fact there was only a peaceful protest, interrupted by a false flag attack led by the corrupt and treasonous FBI. And everyone now in prison over Jan 6 is a political prisoner.

        As such, Trump should simply thumb his nose at the process. And prepare for the civil war which is now justified.

        1. Please tell me this is sarcasm.

          1. Sadly, no.
            If you go back and look at jdgalt's posts on ANYTHING remotely political, it's impossible to distinguish between what he/she writes and your average homeless crack addict, muttering and screaming incoherently about space aliens and governmental agents implanting chips in your brains.

            Mental health decline is no laughing matter. Which is why he and his ilk get my sympathy and not my anger. (Has anyone else noticed that Dr Ed seems to have disappeared here? I just realized that.)

            1. But did he launch a coup attempt in Idaho? That's the current standard for Republican wackjobiness.

      3. "B: The current Executive is opposed to the crime, in which case Privilege doesn’t need to be waived, because the FBI will be investigating the crimes."

        Oh, to live with such faith that the FBI always gets their man.

    2. Executive Privelege is solely a privelege of the office, not the person holding it.

      Nice of you to assert that, where can I find this Executive Privelege written down in the Constitution?

      If you're going to invent it then it must exist in accord with its purpose, not your ipse dixit. What are you imagining to be its purpose?

      That Biden should control Trump's exercise of it does not accord with the purpose I have seen stated for it. Adler dismisses "a President's ability to seek confidential advice" as "weak sauce", but that's his TDS speaking. It's indeed the usual excuse for EP.

      1. Ah, yes. An example of originalist "thought".
        If the Founders had wanted to have an Executive Officer in their new government, they would have put one in, amirite? Maybe a whole Article, with a full list of the powers and authorities, and not some squirrelly language along the lines of "and whatever else they think is necessary and proper to do their job"

  9. "In this case, the legislature's interest in obtaining the relevant information is quite substantial. Congress is pursuing an investigation of potentially criminal activity [...]"

    Does anyone remember the old days where we waited for evidence a crime had been committed before launching into an investigation of said crime?

    1. Whereas today’s era of cameras everywhere, the evidence all too often just shows up on TV nd streams over the internet where everyone can see it.

      Ahhh, the old days!

      1. Ah, if only everybody, (Or even the defendants!) were being allowed to see what those cameras recorded...

        1. You can show it to them, but they won't see anything. Not because it isn't there, but because of hysterical blindness.

    2. where we waited for evidence a crime had been committed

      Do I need to direct you to extensive video coverage of the events of 1/6?

      1. No, you need to direct yourself to the lack of any evidence that Trump had anything to do with that. That a bank robbery takes place downtown gives no one the right to examine your emails and baseent absent any evidence that you had something to do with it.

        1. So now you're moving the goalposts and conceding that a crime was actually committed, but just denying that Trump was involved?

          Okay, do I need to direct you to extensive video coverage of Trump's conduct on the morning of 1/6?

        2. "No, you need to direct yourself to the lack of any evidence that Trump had anything to do with that."

          And before you do that, you have to work out the partisan invisibility problem, wherein stupid partisans absolutely CANNOT see the evidence that is right in front of them.

    3. Crimes were definitely committed on January 6. The issue is how many and by whom.

      1. "Crimes were definitely committed on January 6. The issue is how many and by whom."

        So we've rejected the theory that all the crimes were done by law enforcement agents provocateur. That means that the crimes were by BLM and antifa, obviously.

  10. Since both Congressional Oversight and Executive Privilege are judicial inventions, it's worth noting that in United States v Nixon, SCOTUS noted :

    "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."

    which suggests that at least one justification for EP is not consistent with the idea that EP expires with the Presidential term. It seems unlikely that the candor thing will flourish if offered only a couple of years of protection from public view, until the political wheel turns.

    Likewise, if the ownership attaches to the office rather than the person, you're not going to be getting much of a candor dividend.

    However IMHO the problem really lies at the other end of the lollipop, with Congressional Oversight. Without that invention - by which I mean Congressional Oversight supported by coercive powers - we wouldn't need to worry about Executive Privilege, except in the context of criminal investigations by the executive branch itself, as sanctioned by appropriate court warrants etc.

    1. which suggests that at least one justification for EP is not consistent with the idea that EP expires with the Presidential term.

      But nobody is suggesting that. The only question is who can assert it, not whether it can be asserted.

      1. How strange that you missed :

        Likewise, if the ownership attaches to the office rather than the person, you’re not going to be getting much of a candor dividend.

    2. I always wondered why some advisors' contributions to the decision making process would not be improved by a concern for appearances, and for their own interests as those would be perceived in a public review.

      1. Strange. It would never occur to me to wonder about that, given that the absence of candor in what is said publicly is so obvious. It's clearly the revealed preference of the public, or the public would demand something different.

        1. " It’s clearly the revealed preference of the public, or the public would demand something different."

          Hint: The public did demand something different in 2020. They said "Enough with this Republican buffoon! Let's give the Democrats a chance to pick their buffoon..."

    3. "which suggests that at least one justification for EP is not consistent with the idea that EP expires with the Presidential term. It seems unlikely that the candor thing will flourish if offered only a couple of years of protection from public view, until the political wheel turns."

      For that matter, if you lose favor with your current executive, they can choose to release any damn thing you said with no warning whatsoever. So we need to be sure that even the current President can't reveal anything covered by Executive Privilege.

  11. If the Orange Clown is so bad, prosecute him and move on.

    1. They are trying to find something to prosecute him for. So fat they are 0 and 2. They are hoping to find something that they can distort to go for 0 and 3.

      A question that this non-lawyer has is that the actions that are being investigated happened while Trump WAS President, with Executive Privilege. Wouldn't that Privilege still be in force?

      1. The privilege is a policy decision by the courts. Why should it still apply?

      2. Do you really think that a successful impeachment is the same thing as "nothing to see here?" That's an, um, odd conclusion. But you're not a lawyer or law student, so I guess it's not completely unexpected.

        1. "Do you really think that a successful impeachment is the same thing as “nothing to see here?”"

          Wouldn't you need a successful impeachment before that question would have any relevance?

          1. Strictly speaking, the impeachment was successful. It was the removal trial that didn't come out the way the D's wanted. Well, the way they thought they wanted.

            Consider the possibility:
            Had Trump been removed from office the first time he was impeached, Pence would have become President. This would have presumably helped the R's close ranks behind him, while depriving the D's of the opportunity of campaigning against Trump in 2020. Would a de-energized Democratic Party have been able to get out enough voters to win in 2020? Probably not. If Pence had done even a halfway-reasonable job running the federal government, the White House would still be in Republican hands today, and instead of worrying about a 3.5 trillion dollar investment in America, the Ds would be trying to keep Pence from doing a Rick Perry-esque trimming of federal departments.

      3. "They are trying to find something to prosecute him for. So fat they are 0 and 2."

        This is some odd scorekeeping. Mr. Trump was successfully prosecuted for the "Trump University" scam, and the Trump Organization is currently being prosecuted for accounting irregularities.
        Trump went 2-0 in impeachments, but impeachments are not prosecutions. They're part of the pre-game show. You have to impeach successfully to even be able to prosecute.

    2. prosecute him and move on.

      They already impeached Trump twice, the second time on the same charge. There's nothing new to tie him to the 1/6 incursion. And aren't you supposed to go from probable cause to evidence before commencing prosecution?

      1. As usual, you've confused yourself.

        The normal order of things is evidence produces probable cause, which leads to arrest and prosecution. But we live in a world where evidence is completely invisible to stupid partisans, and the stupid partisans, coincidentally, is most of them..

  12. 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.

    I keep waiting for a chorus of "But the norms !" from the usual suspects, but I'm getting crickets.

    1. Never have hands been more unclean.

      1. As you know perfectly well, I am not a norm-worshipper, I merely draw attention to the crickets emanating from the norm-worshipping classes.

        Admittedly this broken norm about declining to assert Executive Privilege on behalf of past administrations is only medium sized, compared to the giant norm that Nancy blew up when she refused to allow the Minority to seat its representatives on a House Committee (about which we also heard crickets) but it's still another norm gone, accompanied by the sounds of silence.

        Confirming the point I always make - that there's nothing wrong with norms so long as both teams feel bound by them. But if one team feels it's exempt and also gets a free pass from the folk who claim to worship norms, then the norms aren't real norms, just Potemkin norms.

        But you knew that all along.

        1. I am sure Biden would assert executive privilege with respect to documents and witnesses that implicate national interests. The problem here is that Trump is trying to assert the privilege for personal interests which based on public information don't seem to include national interests.

          1. The "norm" was that the current President defers to the ex President on what documents and witnesses from the previous administration implicate the national interests.

            But not any more.

            1. The "norm" was also that the outgoing President assisted the incoming one with making a smooth transition from one to the next. But that was in days when the outgoing President knew and accepted that they WERE the outgoing President, and not el-Presidente-for-life.

            2. The “norm” was that the current President defers to the ex President on what documents and witnesses from the previous administration implicate the national interests.

              [Citation needed.]

              1. Citation supplied - from the Associated Press (not generally known as the Trumpista center of the journo world) :

                https://apnews.com/article/donald-trump-joe-biden-us-supreme-court-congress-capitol-siege-13803c23a094992233df3b6880d2808b

                “every time a president does something controversial, it becomes a building block for future presidents,” said Saikrishna Prakash, a law professor at the University of Virginia who studies presidential powers.

                "controversial" eh ? So not very normy then.

                Biden’s decision not to block the information sought by Congress challenges a tested norm — one in which presidents enjoy the secrecy of records of their own terms in office, both mundane and highly sensitive, for a period of at least five years, and often far longer. That means Biden and future presidents, as well as Trump.

                Fascinating. Looks like we've got a norm, Captain.

                The argument that the special circumstances of the attack justify the extraordinary release should guard against the erosion of executive privilege for presidencies going forward, some experts said.

                Looks like we've got an "extraordinary release", Captain. Damage report on Norm banks, Mr Sulu ?

                “By ratcheting up how extraordinary and extreme it is, it limits the precedent going forward,” said Jonathan Shaub, an assistant professor of law at the University of Kentucky J. David Rosenberg College of Law and a former attorney-adviser in the Office of Legal Counsel in the Obama administration.

                Note, precisely nobody in the story disputes what the norm is – and Shaub double underlines it by saying that the Biden administration’s ratcheting up of “extraordinary and extreme” limits the precedent.

                Ie this move is contra existing precedent, aka norm, sets a new precedent, aka breaks the norm, but Shaub (forlornly) hopes the handwaving will mean that the other side will give it a pass when they have the whip hand.

                But, hey, shoot me down with a fact. When has a sitting President ever denied an ex President’s Executive Privilege call before now ? Evah .

      2. Never have hands been more unclean.

        Entirely accurate as regard the House Democrats, but I'm sure you're in denial about that.

  13. Does Executive Privilege Extend Beyond a President's Term?

    What an amazingly stupid / dishonest way to frame the question at issue.

    The actions of Donald Trump when he is not president are not covered by Executive Privilege, because he's no longer the Executive. So no, Executive Privilege does not extend beyond his term in office.

    But that's not the question here. The question here is "does Executive Privilege cover the actions of the Executive branch after the Executive changes?"

    And the answer to that is "of course it does, moron."

    1. No the question is who gets to assert the privilege. The current or former President?

      1. Considering that the current president is likely to be a rival if not a mortal enemy of the former preside, I believe that's an absurd question on its face.

        1. History tells us differently.

        2. Current and past Presidents are rarely rivals and should never be mortal enemies. They may have been rivals during the campaign but there is an expectation that this is set aside after the election. The fact is that most Presidents have relied on past Presidents for advice and even in some cases have enlisted them for assistance. Think of Presidents Bush (older) and President Clinton being enlisted by President Bush (younger) to raise funds for disaster relief. Among the last person to see President Bush (older) before his death was President Obama. American Presidents make up a rare club with few members. It is only President Trump that has declined to be a member.

          1. On the contrary, it was the worst thing about Trump that he tried to be a member rather than stick with those that brung him.

          2. "Current and past Presidents are rarely rivals and should never be mortal enemies. They may have been rivals during the campaign but there is an expectation that this is set aside after the election. The fact is that most Presidents have relied on past Presidents for advice"

            You're assuming that Der Trumpfenfuhrer has any good advice to give. Upon what is this assumption based?

  14. Executive privilege has traditionally been limited to specifics. It was only the prior administration that sought to employ it to broadly stonewall inquiries. As was pointed out during the Trump administration, Congress typically asks for more, the President refuses and the two branch work out what the Congress can and cannot have. This changed to an absolute in the former administration and continues with these subpoenas. While this may end in court I don't think the courts would want to give such broad ability to limit information. But I don't think the aim here is a win in court but rather to us the courts to slow the process. Congress has not shown patience in the past and here again the former President might win by just slowing the process until Congress gives up. Congress should not but they too often do.

  15. "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."

    And if there's such a thing as "executive privilege," that's the only way to make sense of it. The "privilege" resides in the office, not in the person.

    1. Not only is that the only logical way to interpret it, but it's the only administrable way. Is a court really going to mediate between competing claims of the current and former president about whether certain testimony or documents are important enough to be revealed or too damaging to future presidents to be released? How?

      The other obvious reason why the former president can't be allowed to assert the privilege is: no standing. The harm that executive privilege is purportedly intended to mitigate is disincentivizing people from giving candid advice to the president. But that harm falls solely on the current and future presidents, not on a past president. (I guess technically a past one-term president can be a potential future president, but so can any one of us who is a natural born citizen; that's not the sort of particularized injury that can support standing.)

      The only harm the past president can suffer is personal embarrassment (or potential criminal liability), and that's not the sort of harm that executive privilege is intended to prevent.

      1. Nonsense. The best way to deal with EP is toss it in the dustbin of history.

        1. We've tried that, but the guy keeps coming back. Clearly, we need to give him an important-sounding job with a nice, steady paycheck but no actual power to do anything. Perhaps we could dispatch him to Afghanistan, to negotiate a better deal with the Taliban. What we do is, we send him over Kabul in an AC-130 with an F-35 escort and make a night drop over the airport. Parachute optional.

  16. I would think that executive privilege--whatever it may encompass--should extend equally far after a president has left office as it does during office. The basic rationale, ensuring that the executive's subordinates are willing to offer unvarnished advice, attaches to that advice when it is rendered, and a post-presidency investigation could be equally muffling as a during-presidency investigation. Perhaps even more so, given that a former president can't use his presidential powers to fight Congress in the same way that a sitting president can.

    Having said that, I'm pretty skeptical about the executive privilege in general, at least as applied to a congressional investigation. A CEO who tried to keep documents or junior executives away from a board of directors would quickly learn that he can't do that. The analogy is imperfect (a corporate officer is subordinate to a board, while a president is "co-equal" with Congress), but I think the point remains that monitoring the executive is equally essential to Congress' job as it is to a board.

    There might be room for a distinct "national security" privilege (again, maybe only for judicial matters) that cannot be asserted by a former president. If the justification for privilege is the impact on current national security, then it is the current president who should assert or not assert that privilege.

    1. You're trying to look at this rationally, but the Progs here are just all lathered up over the idea that they will finally get to harpoon the Great Orange Whale, and not one of them has explained the existance of EP lest doing so would reveal why, if it exists, Trump must get the benefit of it irrespective of Biden's wishes.

      Me, I think it should be trashed, so let the (D)s drain it of all legitimacy the better to put an end to it.

      1. You've got the sickness. You need a little bit of separation from the cult.

    2. "I would think that executive privilege–whatever it may encompass"

      Presidential power does not extend to attempting to overthrow elections that went for the other guy. So, no privilege for discussing attempts to do so, whether during or after the President's term in office.

  17. Well, it’s a good thing that law enforcement is going after dangerous criminals like Trump and parents who speak up at PTA meetings and ignore innocents like the Black Bloc protestors and the Chicago mutual combatants.

    1. And the murder of Ashli Babbitt in plain sight of everyone.

      1. Troll better.

  18. The problem with reasoning about executive privilege, is that there's not one word in the Constitution about it, so the whole thing is made up in the first place.

    Since it's unmoored in Constitutional text, we're not arguing about what the law is, only what it should be, and that's all just opinions.

    1. A/C priv also isn't in the Constitutional text. Neither is judicial notice.

      There are plenty of prudential doctrines that aren't from the Constitution. That's as expected for the judicial power.

      1. It is as expected for a nation based on English common law.
        Brett yearns for a civil law system where it doesn't count unless it's written down. He would be happier if he were French.

  19. Nothing convinces people of your innocence quite as much as obstructing an investigation in which you insist "there's nothing to hide, here, so quit asking" and you run a quick cleanup.

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