Executive privilege does not protect Trump’s Jan. 6 records

U.S. District Court Judge Tanya Chutkan made quick work of former President Trump’s bid to prevent the House Select Committee investigating the Jan. 6 insurrection from acquiring his communications and other documents relating to the events of that day. In a much-quoted portion of her decision, the judge notes that Trump’s claim of executive privilege fails to acknowledge the deference the court owes the current President, Joe Biden. After all, as Judge Chutkan observes, a president’s executive power does not exist forever: “Presidents are not kings” and Trump “is not president.”

The court’s ultimate conclusion — that President Biden’s decision not to invoke executive privilege outweighs Trump’s contrary assertion — is squarely based upon precedent, and Judge Chutkan declined to engage in further review to assess whether the privilege should apply as to specific records.

Trump has appealed, of course, and it is never certain that a reviewing court will not find a basis for disagreement with a district court’s conclusions. It is worth noting, therefore, that even if executive privilege could be invoked by Trump in this instance, that would not automatically immunize the documents requested by the Select Committee from disclosure.

Executive privilege, the U.S. Supreme Court has told us, exists as a matter of separation of powers, to prevent interference with a president’s ability to receive unfiltered and candid information from his or her advisors. Without the privilege, a president could be denied honest advice.

Even assuming this rationale for the privilege would be applicable in circumstances in which information is sought in connection with events unconnected to a president’s official duties and responsibilities, the Supreme Court has embraced a balancing test for courts to determine whether, regarding particular documents, the privilege should yield to the reasons for the request.

For example, in the 1974 case in which the Court first explained the privilege, United States v. Nixon, the court concluded that the information that the president wanted to withhold was necessary to protect the integrity of the justice system and its obligations to defendants facing criminal charges.

The Nixon court advised that courts should give greater deference to claims of executive privilege connected to the protection of “military, diplomatic, or sensitive national security secrets.” This language suggests the court may have been concerned about the unintended consequences should such information be disclosed in the context of judicial proceedings.

But the greater protection afforded information related to national security would not apply in the context of the House Select Committee’s work. As an initial matter, Trump has not claimed that any information specifically requested by the committee concerns national security; rather, he has argued that the records reflect privileged presidential communication and the deliberative process.

Further, any claim by Trump that the information sought by the committee relates to national security would be undercut by the sitting president’s determination that there is no basis to withhold any of the records at issue, and, indeed, that “Congress has a compelling need in service of its legislative function to understand the circumstances that led to the[] horrific events” of Jan. 6.

In the end, balanced against a claim of executive privilege in the context of an investigation into Jan. 6, there is the committee’s obvious need for the records it has requested. In short, this information is necessary for Congress to carry out its basic constitutional responsibility to — as the Supreme Court put it in another case in which Trump tried to prevent the disclosure of information — learn about “defects in our social, economic or political system,” so that it can “remedy them.”

Perhaps it goes without saying, but the framers of our constitution designed a governmental system in which only Congress has the capacity to engage the legislative process to remedy problems on a national scale, such as a threat to the process through which we choose the president. The events of Jan. 6 make more acute the fact that Congress undertakes this work not to protect its own institutional interests, but on behalf of us all.

Lawrence Friedman is a professor of privacy and constitutional law at New England Law in Boston.