In an 8–1 ruling, the justices upheld an appellate court finding that the former president’s claims were meritless.
In an 8–1 ruling, the justices upheld an appellate court finding that the former president’s claims were meritless.
I n a short opinion last night, the Supreme Court rejected former President Donald Trump’s effort to block disclosure of records from his tenure in office by asserting executive privilege. The records, which are in the possession of the National Archives, have been sought by the House January 6 committee, which is aggressively investigating Trump’s role in the Capitol riot. The Court’s ruling upheld the unanimous decision of a three-judge panel of the D.C. Circuit Court of Appeals. (I covered the Circuit Court’s decision here.)
Only Justice Clarence Thomas parted company with the Court’s consensus, and he did not elaborate on why.
Significantly, President Biden had declined to defend President Trump’s sweeping privilege claims, although he did invoke executive privilege more narrowly to shield some records of his Republican predecessor’s tenure, a move to which the Democratic-controlled House January 6 committee acceded.
In its brief opinion, the Court observed that the question of whether a former president retains some measure of confidentiality privilege “in the face of a determination by the incumbent President to waive the privilege” was “unprecedented.” Ultimately, though, the Court concluded that there was no need to grapple with the “serious and substantial concerns” raised by that question. The justices explained that the D.C. Circuit had, for argument’s sake, both analyzed the privilege claims under tests for which Trump himself had advocated, and assumed it was immaterial that he was a former president rather than the incumbent. The Circuit found that Trump’s claims were sufficiently weak to be rejected nevertheless, and the Supreme Court declined to overturn that finding.
Trump seemed to regard the privilege as a personal one, attaching to him in any context. But the privilege belongs to the chief executive only when he’s acting in that official capacity, and even then it is not absolute. It is strongest when asserted in connection with core duties of the presidency — e.g., decisions about foreign relations, national security, defense strategy, and domestic governance. It is weak when invoked to conceal possible misconduct, or when the needs of Congress or a judicial proceeding for disclosure are clearly stronger than the executive’s need for confidentiality.
The D.C. Circuit had not rejected outright the possibility of a former president’s retaining executive privilege in defiance of the incumbent president’s waiver; because the Supreme Court, in Nixon v. Administrator (1977), had opined that former presidents do retain some undetermined degree of privilege, such a rejection wasn’t an option. The Circuit did, however, signal its skepticism about this aspect of Nixon, which prompted Justice Brett Kavanaugh to pen a short opinion that, while agreeing with the 8–1 majority resolution of the case, pushed back on this point.
To my mind, Justice Kavanaugh’s argument is unconvincing. For the most part, he rehashes the importance of the executive privilege recognized by the Court during the Watergate scandal, in United States v. Nixon (1974). No sensible skeptic of a post-presidency privilege is disputing that, as Kavanaugh puts it, “by protecting the confidentiality of . . . internal communications, the Presidential communications privilege facilitates candid advice and deliberations, and it leads to more informed and better Presidential decisionmaking.” Nor is anyone disputing that, to promote candor, the president and presidential advisers must be confident that their advice — when it is truly in furtherance of the office’s core responsibilities — will to some degree be shielded from disclosure even after the president’s term ends.
The question is who gets to decide whether the privilege should be invoked.
We only have one president at a time. That president, even if he is a political rival of his predecessor, has a strong incentive to invoke the privilege to protect properly concealed information from that predecessor’s tenure. After all, the current president will want the same indulgence from his successors. Indeed, as noted above, Biden has asserted the privilege to protect some Trump administration materials from disclosure, and the House Committee has relented — so not even Congress is taking the position that legitimate executive-confidentiality concerns end when a president leaves office.
The privilege, however, belongs to the presidency. As Justice Scalia trenchantly explained in his 1988 Morrison v. Olson dissent, the Constitution reposes all executive power in a single official, the incumbent president. A former president has no constitutional authority, so it is dubious, to say the least, to contend that, in defiance of the holder of all executive power, a former president could invoke power he does not have in order block access to information sought by Congress or the courts — i.e., sought by the incumbent Article I or Article III branches of government, acting under their constitutional authorities.
Such a claim would make sense only if the information in question were confidential of its own force — i.e., if concealment were not really a privilege belonging to the executive branch, but instead attached to the information itself automatically from the moment it was generated. And that has never been how it works. The qualified authority to conceal has always been treated as a privilege, which it is the president’s prerogative to invoke or not — and absent such an invocation, presidential advisers whose communications will be exposed have no cognizable right to claim that the president has improperly ignored concerns about candor.
As Kavanaugh himself concedes, “it could be argued that the strength of a privilege claim should diminish to some extent as the years pass after a former President’s term in office.” He’s right, but that is because what determines the strength of the privilege claim is the interest of the executive branch of government, not the privacy concerns of former presidents and their advisers. Consequently, the invocation decision should be left to the incumbent president, who is in the best position to gauge the executive branch’s interests and weigh them against the needs of Congress or a judicial proceeding. Thus does the policy align perfectly with constitutional law, under which executive power is reposed only in the incumbent president.
Obviously, Justice Kavanaugh agreed with the majority that, while these concerns are significant, it was unnecessary to resolve them in this case, given the factual weakness of former president Trump’s privilege claims. By rejecting those claims, the Court has now further strengthened the hand of the House January 6 committee, which has clearly trained its focus on the actions of Trump and his advisers before and during the riot.