Donald Trump Has It Wrong: Cutting through the Confusion on Executive Privilege

The privilege belongs to the incumbent president and no one else.

T he doctrine of executive privilege is now the centerpiece of the controversy between the Justice Department and Donald Trump over the property seized by the FBI from the former president’s Mar-a-Lago estate. I explained late last week how the Justice Department is trying to carve classified information out of the litigation over the seizures, in which both sides have proposed special-master candidates for the unenviable task of sifting through thousands of documents to ensure that anything potentially privileged is screened out from viewing by the team of prosecutors and agents investigating the case. Still, there remains dispute about what executive privilege is, what it protects, and who may invoke it. So let’s discuss.

Donald Trump’s propensity to conflate his person with the office of the presidency, and his presidency with the well-being of the nation, appears undiminished 20 months after he left office. Executive privilege is a subject easily absorbed into this misconception.

Here’s what you need to know to cut through the confusion: Executive privilege is a presumption of confidentiality for the protection of the executive branch of the United States government. It is not a personal privilege for the benefit of any man or woman who happens to be, or have been, the president. A personal privilege would be, for example, the Fifth Amendment privilege against self-incrimination — a privilege to avoid producing testimony that might help the government prosecute the person holding the privilege.

Executive privilege protects from disclosure communications between the president and his advisers in furtherance of the duties of the presidency. The privilege has also been extended to communications and work product of subordinate executive staffers in the execution of the president’s duties. Even when the privilege legitimately applies, though, the confidentiality it extends is not absolute; it can be overcome by other important government interests. And notice, again, that the privilege protects and promotes the duties of the presidency, not the personal interests of the incumbent or former chief executive.

Post-Watergate Confusion: Nixon v. Administrator

As the privilege belongs to the executive branch, and is only to facilitate executive functions, it follows that it may be asserted only by the single officer of government who actually has executive power — the incumbent president. So how do we get to this confused state of supposing it may properly be asserted by former presidents, who have no power of any kind — executive or otherwise?

We can thank the Supreme Court for that. Post-Watergate, as we’ve noted a number of times now (see, e.g., here, here, here, and here), the Court surmised in Nixon v. Administrator (1977) that former presidents retain some unspecified quantum of executive privilege. This notion — which did not even prevail in Nixon itself — is constitutionally anomalous. To grasp why, one need only reread the late, great Justice Antonin Scalia’s Morrison v. Olson (1988) dissent, which explains how and why the Framers reposed all executive authority in the president. We only have one president at a time.

So what made the Nixon Court endorse the idea of post-presidential executive privilege, even with extensive caveats? I believe Justice William Brennan’s errant theory was driven, understandably, by a simultaneous and significant transition in our understanding of the ownership of presidential records.

Prior to another post-Watergate development, the enactment of the 1978 Presidential Records Act (PRA), records generated by a president’s tenure in office were generally understood to be the property of that president. If records of a past presidency had been relevant to some official inquiry — say, a Justice Department investigation, a congressional oversight hearing, or a court proceeding — those records would have been in the possession and control of the former president.

A subpoena could thus have been issued to the former president’s records custodian. In the first instance, it would have been up to the former president to determine whether there was any legal basis to object to the subpoena. The former president would have recognized whether there was a legitimate basis to invoke executive privilege. What would have made the invocation legitimate, however, was its promotion of the executive branch’s interest in confidentiality; thus, it would have been supported by the incumbent president, who very much shares that institutional interest.

Now, as it happens, this was not much of an issue prior to Watergate. And that raises another relevant novelty: Although the principle of executive privilege had been ingrained in presidential assumptions since the dawn of our constitutional system, it was not until the most famous litigation of the Watergate era, United States v. Nixon (1974), that the Supreme Court was called on explicitly to recognize executive privilege and delineate its parameters in the context of a judicially enforceable subpoena (for the White House tapes) issued by a special prosecutor in an ongoing criminal investigation.

As already noted, it was assumed prior to Nixon’s 1974 resignation that presidential records were the property of president in whose tenure they were generated. But with the growth of government and 20th-century expansion of executive power, there was already manifest tension between this assumption and the imperative of having accessible government records. As President Ford’s first attorney general, William Saxbe, put it, presidential records “are peculiarly affected by a public interest which may justify subjecting the absolute ownership rights of the ex-president to certain limitations directly related to the character of the documents as records of government activity.”

This tension between private ownership and public interest resulted in a 1974 agreement between former president Nixon and the General Services Administration (GSA) regarding the handling of Nixon’s records (which were still relevant to criminal investigations, even though Nixon himself had been pardoned). With the presidency weakened by the Watergate scandal, Congress — against whose voracious tendencies executive privilege is a safeguard — decided to try to supersede the Nixon/GSA agreement. With Ford’s support, the 1974 Preservation of Presidential Recordings and Materials Act, relating specifically to Nixon’s records, was enacted. Then in 1978, with President Jimmy Carter, a Democrat, having taken office, a Democratic-controlled Congress prescribed new standards for the retention of all presidential records in the PRA (Title 44, U.S. Code, § 2201 et seq.). Henceforth, the records would be deemed government property, not the property of the president or pertinent former president.

Distinguishing Executive Privilege from Ownership of Executive Property

To summarize, at the time the Supreme Court decided Nixon v. Administrator — i.e., after Watergate but before the PRA — there was a dearth of experience and law regarding privilege issues arising out of a former president’s records. The notion of records being presumptively the property of the government rather than the former president was still evolving. In that setting, I believe the Court confounded the significantly distinct issues of ownership and privilege.

At the time, given that the common understanding was that former presidents owned and controlled their documents, it was natural to assume that they’d be positioned to recognize the validity of an executive-privilege assertion if the question came up. Critically, though, that should not have meant privilege was connected to the ownership and control of the documents. The privilege still belonged to the executive branch for the protection of the executive branch, not to the former president for the protection of himself.

Obviously, regardless of whether records were deemed the property of the government or a former president, if a question about them arose — if they were, say, subpoenaed in an official inquiry — the former president would be more familiar with records than the incumbent administration. If the former president believed privilege should be asserted, the incumbent president would likely defer to that judgment, if it were clear that the former president was trying to protect the executive branch, rather than using executive privilege as a pretext to protect himself from civil or criminal liability, or from personal embarrassment. Nevertheless — and this is the crucial point — the officer of government singularly responsible for the protection and proper functioning of the executive branch is always the incumbent president, not the former president.

Put another way, only the current president can make an authoritative judgment regarding whether the need to preserve the confidentiality of a prior president’s communications (during that prior president’s time in office) serves the current and future functioning of the executive branch. A former president can give his best advice on that question, but the decision has to belong to the incumbent, not a predecessor.

Partisan and Personal Interests vs. Legitimate Executive Interests

A commonly heard counter to this is that President Biden is such a blind partisan, he would rebuff former president Trump’s efforts to invoke executive privilege even if the latter were undertaken in good faith. No one has to convince me that Biden frequently elevates Democratic priorities over the national interest (which includes the institutional interests of the executive branch). Even with that stipulated, though, the partisanship argument is illogical, ignoring Biden’s interest in preserving the confidentiality of his own presidential communications. It also ignores that Trump’s assertions of privilege have been driven strictly by personal interests — and, lately, have been antithetical to executive interests in protecting national security.

First, it is simply not true that Biden has failed to support any invocation of privilege that could have the effect of protecting the confidentiality of Trump’s presidential communications. In the main, what Biden has done is decline to support Trump’s efforts to invoke privilege specifically (a) to forestall investigations of the Capitol riot, and (b) to thwart the executive branch’s efforts to reclaim presidential records and sensitive intelligence — which Trump has removed in violation of law, and has failed to safeguard consistent with standards for protecting national-defense secrets. While Biden is incontestably influenced by partisanship, his refusal to support Trump in these particulars is a rational judgment. It recognizes jurisprudence holding that executive privilege is not absolute and should give way if it collides with a higher public interest.

Biden may well believe, for example, that the House’s Capitol riot investigation is a higher public interest than protecting the confidentiality of Trump’s relevant communications. Even if he doubted that, he might rationally conclude that if he tried to defend Trump’s privilege claims, he would lose in court, which would weaken executive privilege in the long run. (And indeed, in ruling against Trump’s privilege claim, the D.C. Circuit reasoned that Congress had a patent interest in investigating an attack on itself, a conclusion the Supreme Court left undisturbed.) Therefore, Biden may well have surmised: Why endure the political cost — the anger of the Democrats’ virulently anti-Trump base — to take a position that would probably lose in court anyway? But, that said, Biden did assert executive privilege on national-security grounds in order to prevent the January 6 committee from examining certain Trump presidential records. It cannot fairly be said that he refuses to protect Trump’s records just because they are Trump’s records.

Second, if we are going to factor Biden’s partisan failings into the mix, why should we turn a blind eye to Trump’s narcissistic inability to distinguish his own personal interests from the interests of the presidency. That is, if we are willing to suppose that Biden, for the wrong reasons, is refusing to support Trump’s attempts to invoke privilege, why should we not be similarly willing to suppose that Trump is trying to invoke privilege for the wrong reasons — i.e., in furtherance of his own personal interests in avoiding embarrassment and potential liability, rather than to bolster the executive branch’s capacity to protect the country?

All indications are that Trump is elevating his own interests over the government’s. In April 2022, the National Archives and Records Administration advised Trump that it was poised to make available to the FBI 15 boxes of records that Trump had surrendered three months earlier. NARA stressed to the former president that this had to be done so the bureau and the intelligence agencies could do a damage assessment — an examination of whether Trump’s apparent mishandling of highly classified documents had imperiled national security, including sources and methods for gathering intelligence.

It could not be more manifest, then, that it was in the executive branch’s interest that this assessment be done. Yet, Trump opposed it. He sought serial delays, then finally tried to invoke executive privilege to prevent the damage assessment from happening. Even now, he is still trying to assert executive privilege to block the FBI probe, which seeks to determine which unauthorized people may have had access to top-secret intelligence, and whether some of that intelligence is still being concealed or has been misplaced. To be blunt, the principal purpose of this investigation by executive agencies is to determine whether our intelligence operatives have been imperiled and our methods of gathering intelligence have been compromised.

How is it conceivably in the interests of the executive branch to delay or derail such an investigation?

It’s not. The only rational explanation is that Trump, out of personal concerns involving potential legal liability and political damage, has sought to thwart the investigation. Even if we conceded for argument’s sake that Trump has some power to invoke privilege, this would not be a proper invocation. To the contrary, it would be an undermining of the executive branch.

Contra Kavanaugh

Finally, we must address the strongest argument made on behalf of the theory that former presidents retain executive privilege: the one offered by Justice Brett Kavanaugh in Trump v. Thompson (2022), where, as noted above, the Court affirmed the D.C. Circuit’s decision to give the House January 6 committee access to relevant Trump records held by the National Archives.

I have great respect for Justice Kavanaugh, not just for his legal acumen but for his relevant experience. He was the staff secretary in the Bush-43 White House — the official who managed the paper flow for a wartime president, and who would thus be especially sensitive to the importance of executive privilege to the execution of top-secret operations. I also bet he would find it unfathomable that his old boss, or most any former president, would try to invoke executive privilege to prevent the executive branch from assessing possible compromises of national security.

With due respect, though, Kavanaugh’s argument proves too much. He is very persuasive in summarizing why a president’s inarguably privileged communications should continue to be covered by privilege even after that president is out of office. But no sensible person would contend otherwise. The question is not (or at least should not be) whether the privilege may properly be invoked; the question is by whom should it be invoked? The only constitutionally faithful answer to that question is the incumbent president. The assertion of executive privilege is an executive power. Only the incumbent president has executive power; a former president has no power.

A former president has great influence, of course. If he maintains that privilege should be asserted over a particular set of communications that occurred during his presidency, that should carry great weight with the incumbent president — who, again, has an institutional interest in preserving confidentiality for current and future purposes (including his own inevitable post-presidency). But the salient questions in any invocation of executive privilege, whether applied to communications of a present or past president, are (a) whether the confidentiality is claimed in furtherance of the legitimate duties of the presidency, and (b) whether, under the circumstances, the executive interest in confidentiality is outweighed by some higher public interest. The government official in the best position to weigh those questions and thus decide whether to invoke privilege is the incumbent president.

Justice Kavanaugh offers no constitutionally coherent theory explaining how a former official vested with no power would have authority to invoke it, much less invoke it over the objection of the incumbent president. Moreover, the justice provides no explanation for why a court, rather than the chief executive, should decide whether a privilege of the executive branch should be asserted.

The privilege belongs to the incumbent president and no one else. Just as former president Trump has conflated his personal interests with the interests of the executive branch, the Nixon Court mistakenly conflated the ownership of presidential documents with the authority to assert privilege over presidential communications recorded in those documents. A half-century later, the law is clear that former presidents no longer have ownership of presidential records. The law should also be clarified to reflect that former presidents have no authority to invoke executive privilege. The records of their administrations undoubtedly contain privileged communications, but it is for the incumbent president to decide whether the privilege should be invoked.