Trump is learning what executive privilege really means

Former President Trump is desperate to keep White House documents out of the hands of the House Select Committee on the January 6 attack. His assertion of executive privilege, seeking to enjoin the National Archives and Records Administration [NARA] from complying with a congressional records request, was soundly denied by U.S. District Judge Tanya Chutkan, and the case has been set for an expedited hearing before the District of Columbia Court of Appeals on Nov. 30.

As Judge Chutkan observed in her extensive opinion, executive privilege exists for the benefit of the presidency, rather than for any individual president, much less former presidents. Trump is therefore almost certain to lose.

The Select Committee’s request for numerous Trump-era documents includes “written communications, calendar entries, videos, photographs, or other media relating to [Trump’s] January 6 speech, the January 6 rally and subsequent march, the violence at the Capitol, and the response within the White House.”

It was served on the NARA pursuant to the Presidential Records Act [PRA], which was passed by a large bipartisan majority in the wake of President Nixon’s resignation. The PRA recognizes the need to “encourage the free flow of ideas within the executive branch” by allowing presidents to shield certain documents from public exposure, even after they leave office. Even so, it includes an express exception for congressional requests for “the activities, deliberations, decisions, and policies” of the president.

Crucially, the PRA confers upon sitting presidents the power to object or agree to the production of records for Congress, both for themselves and their predecessors. In this case, President Biden formally consented to the document production, thus overruling Trump’s assertion of executive privilege.

Trump’s only remaining recourse was to the courts – he filed suit on Oct. 18 – where the Biden administration has firmly restated its position that Congress’s need to investigate the Capitol insurrection “overcomes the confidentiality concerns” of former President Trump.

Executive privilege is not absolute, even for sitting presidents. As the U.S. Supreme Court held in a case involving former President Nixon, the privilege can be “overcome by an appropriate showing of public need by the judicial or legislative branch.” Previous presidents, including Ronald Reagan and George W. Bush, have voluntarily waived their own executive privilege, recognizing the importance of allowing Congress to pursue investigations in the public interest.

Trump’s lawyers object to Biden’s authority, however, arguing that “weakening executive privilege by allowing it to expire with a president’s term of office makes no more sense than allowing the attorney-client privilege to terminate at the end of a representation.” Trump’s legal team has the right analogy, but their conclusion is dead wrong.

It is black letter law that the corporate attorney-client privilege exists for the benefit of the company itself, and does not belong to any particular corporate officer. Although a CEO may speak in confidence to corporate counsel, seeking advice on sensitive or even potentially criminal matters, it is always up to the corporation, acting through its currently “authorized constituents,” to decide whether to disclose the content of such communications to law enforcement or other outside agencies.

That is especially the case for a former CEO who is suspected of wrongdoing in office. Companies quite routinely waive attorney-client privilege so that investigators can get to the bottom of possible fraud, mismanagement or law-breaking, and past officers have no standing to complain. 

The same reasoning holds true in bankruptcies, where the successor trustee takes over a company’s attorney-client privilege, or when corporate officers have been sued by shareholders for malfeasance. In technical legal terms, it would be totally nuts to allow ex-CEOs to determine the breadth of investigations into their own misconduct. Thus, the privilege is held by the institution for whose benefit it presently exists, to be exercised or relinquished by current executives rather than the former office-holders whose communications or documents are at issue. 

Trump is a deposed CEO, whom the American people voted out of office. In a recent interview, he praised the “common sense” of the Capitol insurrectionists who terrorized his own vice president by chanting “Hang Mike Pence.” Congress and the public surely have a right, and a profound need, to access evidence in the National Archives regarding the maneuvers in the Trump White House.

Trump’s assertion of privilege in perpetuity will not succeed. The truth about his responsibility for Jan. 6, whatever it may be, is going to be revealed. As Judge Chutkan explained, “Presidents are not kings, and [Trump] is not President. He retains the right to assert that his records are privileged, but the incumbent President ‘is not constitutionally obliged to honor’ that assertion.” To put it more succinctly, whether he likes it or not, Donald Trump has left the building.

Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law and the author of “The ‘Colored Hero’ of Harpers Ferry: John Anthony Copeland and the War against Slavery.”