The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Executive Power

Trump and Steve Bannon Waive Executive Privilege they do not Have

The "waiver" opens the door for Bannon to testify before the congressional January 6 Committee. But former presidents are not entitled to executive privilege, and especially not when it comes to testimony by private citizens.


Steve Bannon. (KEIZO MORI/UPI/Newscom)


Former Trump adviser Steve Bannon has agreed to testify before the congressional committee investigating the January 6, 2021 attack on the Capitol, and Trump's efforts to overturn the 2020 election. Bannon previously cited executive privilege as a reason to refuse the Committee's subpoena. But he has changed that position after Trump sent a letter agreeing to waive the privilege if Bannon reaches an agreement with the Committee.

Inspired by Trump's generous waiver, I hereby officially proclaim and declare that I am waiving the share of the spice revenue of Arrakis due to me as Sublime Padishah Emperor of the Known Universe! Are you not impressed by my generosity? If not, it might be because I'm not actually an Emperor, and do not actually have any spice revenue.

Much the same points apply to Trump's "waiver." Executive privilege is a power of the office of the presidency. Trump has not been president since January 20, 2021.  Since that date, he is no more the President of the United States than I am an Emperor. Therefore, he is no longer entitled to assert executive privilege.

The DC Circuit said exactly that  when it rejected Trump's efforts to use executive privilege to shield White House documents from the January 6 Committee. In a January decision  refusing to block the release of the documents, the Supreme Court did not rule on the issue of former presidents' privilege, but did conclude that Trump wasn't entitled to assert executive privilege here, because he could not do so even if he were still in office. If that's true of official White House records, it's surely even more true of the testimony of a private citizen.

Even if he were still president, executive privilege would not give Trump the power to to restrict the testimony of private citizens. Executive privilege cannot extend to controlling people who aren't part of the executive branch. If President Biden calls me up to discuss some issue (which he should do more often!), he can't then use executive privilege to keep me from telling Congress about it.

Bannon was a White House employee back in 2017, until his acrimonious departure from the Trump administration. But he was a private citizen throughout the period covered by January 6 Committee investigation (late 2020 and early 2021).

It's good that Trump lost the case over the release of the records, and that Bannon will have to testify. But it is unfortunate that the issue of former presidents' supposed claims of executive privilege has not yet been fully resolved. The idea that such a privilege exists is a fallacious one, for reasons I summarized in my January post about the January 6 documents case:

If it exists at all (some scholars argue it does not), executive privilege is a power of the office of the presidency, and can only be wielded by the person who occupies the office at the time in question. Once he leaves office, he loses all the power and privileges associated with it, except perhaps those specifically extended by laws enacted by Congress (e.g.—pension rights and continuing security provided by the Secret Service). As the Court of Appeals opinion in this case explains, "the privilege, like all other Article II powers, resides with the sitting President."

No one claims that a former president can continue to issue executive orders, receive ambassadors, or act as commander-in-chief of the armed forces. He cannot keep on wielding any of those powers, even if he feels he needs to do so to prevent a successor from embarrassing him. The same logic applies to executive privilege. These are all powers of the office that expire as soon as the president's term in office at ends. At that point, he has no more executive authority than any other private citizen.

I also addressed the standard rationale for allowing ex-presidents to wield the privilege—fear that otherwise their successors could authorize embarrassing revelations for political reasons, which in turn could in inhibit discussions with presidential advisers:

It's true, as [Justice] Kavanaugh and others have pointed out, that this approach allows current presidents to release predecessors' documents in ways that might embarrass the latter. Fear of such an eventuality might indeed inhibit current presidents' deliberations with their advisers. But there are many things incumbent presidents can do that might embarrass predecessors, including reversing the latter's policies in ways that make them look bad, blaming them for various problems, and so on. The possibility that such things might happen can potentially inhibit presidents from adopting various policies, as well as inhibit advisers from recommending a given course of action.

But the Constitution does not give former presidents any general power to block successors' actions that might embarrass them. And, while fear of future embarrassment might sometimes inhibit good policies, it also can prevent bad ones. If future revelation of your activities in office might prove embarrassing, that may be because you're doing something wrong!

Regardless, the Constitution does not grant executive privilege—or any other official power—to former presidents. Absent specific laws to the contrary, they should be treated as private citizens, on par with everyone else.

If potential embarrassment is enough to justify letting former presidents retain the power of executive privilege, why not other presidential powers, as well? To really protect himself against embarrassment after leaving office, perhaps a former president needs to retain control of the FBI and the CIA, so he can use those agencies to forestall unflattering revelations.

Down that road lies a pretty obvious slippery slope, one that would make a hash of the time-limited nature of presidential terms. That limitation is, of course, a key constitutional safeguard against the accumulation of power in a single person.