When the House of Representatives select committee on the Jan. 6 assault on the U.S. Capitol issued subpoenas to aides and confidantes of Donald Trump to testify and provide documents, the former president promised defiance “on executive privilege and other grounds.”
Neither English common law nor the U.S. Constitution address the executive’s authority to withhold information from legislatures, the courts, or the public. The Eisenhower administration (which invoked executive privilege a record 44 times) was the first to use the phrase. The Supreme Court formally codified it (while limiting its scope) in United States v. Nixon (1972).
That said, claims of executive privilege are as old as the United States. In 1792, George Washington refused to supply Congress with documents related to a disastrous military campaign against Native Americans. Thomas Jefferson refused to comply with a subpoena to testify at the trial of former vice president Aaron Burr in 1804. Many of their successors followed suit.
These days, executive privilege is being invoked not to promote efficiency, protect confidentiality, and enhance national security, but to delay — and thereby deny — justice. Abuses of a doctrine that is at best a necessary evil reveal that our system of checks and balances, once the envy of the world, is on life support.
To be sure, the Justice Department’s Office of Legal Counsel has decreed that the doctrine of executive privilege should not be employed “to shield documents which contain evidence of criminal or unethical conduct by agency officials.” The DOJ has recently argued that Trump’s use of law enforcement officials and litigation to advance his “personal political interests with respect to the results of the 2020 presidential election” constitute an “exceptional circumstance,” justifying a departure from its normal practice of protecting internal deliberations. The Biden White House has authorized the National Archives to supply relevant documents to the select committee. Federal agencies are cooperating with the select committee.
Nonetheless, the former president knows that because litigation in the United States is long and life is short, he can win while losing — by using roadmaps provided by the Supreme Court. Here’s how:
In Nixon v. Administrator of General Services (1977) the Supreme Court upheld the constitutionality of the Presidential Recordings and Preservation Act, which authorized the GSA to assume custody of Nixon’s presidential material (42 million documents and 880 tape recordings) and make them available for use in judicial proceedings. The court indicated, however, that “a former president may also be heard” on his or her right to invoke executive privilege (albeit with less deference than that given to the incumbent president), a ruling Trump is certain to exploit.
In Trump v. Mazars (2020), a case involving subpoenas to the Trump Organization’s accounting firm, the court claimed that in addition to having a valid legislative purpose, congressional inquiries into behavior in the executive branch must show that other sources cannot provide the relevant information — or issue subpoenas that are not broader than “reasonably necessary” to achieve the objective and must ensure that the legislative purpose is detailed and substantive. These requirements give Team Trump a lot to contest.
The DOJ is likely to pursue criminal contempt charges against Trump aides and confidantes who refused to obey congressional subpoenas (including Steve Bannon, who has the most dubious claim of executive privilege, since he was not serving in the executive branch in 2020). Some or all of the loyalists, however, will surely contest the charges in court and draw the process out for as long as possible. If convicted, they may well accept punishment for a misdemeanor (a $1,000 fine and 1-12 months in prison) rather than testify.
The clock is ticking. Rep. Bennie Thompson (D-Miss.), chair of the select committee, plans to issue a report in the spring of 2022. More important, if the midterm elections in November 2022 result in Republican control of the House of Representatives, Congressional investigations of the Jan. 6 insurrection will end.
In an essay in The New Republic, Timothy Noah candidly, if crudely, expressed his concern about the absence of checks on presidential power amidst political polarization and public apathy: “If the crimes of Donald Trump [who has claimed that Article II of the Constitution gives him ‘a right to do whatever I want’] don’t prompt Americans to call bullshit on executive privilege, nothing will.”
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”