Donald Trump
President Donald Trump speaks during a rally protesting the Electoral College certification of Joe Biden as President, Wednesday, January 6, 2021, in Washington. (AP Photo/Evan Vucci)

Donald Trump’s latest attempt to block a congressional probe with an invocation of executive privilege rests on a fatally flawed premise. The suit he filed against the National Archives and Records Administration (NARA) and the House Select Committee to Investigate the January 6th Attack on the United States Capitol asserts that congressional “investigations are permissible only insofar as they further some legitimate legislative purpose,” and “there is nothing in the overwhelming majority of the records sought that could reasonably be justified as a means of facilitating the legislative task of enacting, amending, or repealing laws.” The false implication is that Congress has no legitimate interest in investigating the events of January 6 unless connected to the writing or rewriting of statutes—an interest Trump thinks all but irrelevant to the pursuit of his records.

This logic fails on multiple counts. First, a full understanding of how Trump managed affairs on and leading up to January 6 could easily lead to changes in legislation regarding Capitol security. Second, Congress’s legislative purposes go well beyond drafting laws. Congress makes rules for its own proceedings. It governs the discipline of its own members. Under the Fourteenth Amendment, it can preclude federal officials who swore to uphold the Constitution from holding future federal office if they participate in insurrection. The January 6 Committee could lead to action on all these fronts.

Finally, Congress has a general power of oversight concerning the executive branch. In describing just last year what counts as a “legitimate legislative purpose,” the Supreme Court—without attribution—quoted Woodrow Wilson’s formulation in his classic work, Congressional Government:

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served.

Had the Court quoted Wilson to the end of his paragraph, it would have added:

. . . and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function.

Given all of Congress’s pertinent responsibilities, it is absurd to challenge the legitimacy of a congressional investigation into a brutal attack on Congress itself. That attack threatened Congress not only as an institution but also as an assembly of living, breathing elected officials whose lives were endangered by violent insurrectionists. Congress’s interest in “acquainting itself with the acts and the disposition of the administrative agents of the government” on January 6 is as legitimate a legislative task as one can imagine.

Legally speaking, the immediate issue posed is the scope of executive privilege as far as it protects confidential communications involving a former president and that president’s administration officials. NARA holds these records pursuant to the Presidential Records Act (PRA) of 1978. Anxious that records of the Nixon White House not be destroyed after Watergate, Congress enacted the 1974 Presidential Recordings and Materials Preservation Act, which covered the presidential records of only Richard Nixon. After the Supreme Court upheld the act against Nixon’s separation of powers–based challenge, Congress created a permanent framework for taking custody of and managing the records of all presidents and vice presidents from the Reagan administration forward.

As applied to former presidents, the broad outlines of the PRA system are straightforward. Under the act, materials within the statutory definition of “presidential records” become the property of the United States and are managed by NARA. Such records become available to the public 12 years after a president leaves office in almost the same manner as federal records are ordinarily managed under the Freedom of Information Act. The records may be available earlier, however, to any of the three branches of government that needs them. They may be released in connection with judicial proceedings pursuant to a court order. They may be released to an incumbent president who needs them to conduct current executive branch business. And they are to be made available “to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available.” In other words, the PRA makes Trump’s records available to the January 6th Committee.

The PRA does account for the likelihood, however, that a living former president might wish to invoke executive privilege before records are released. The process begins when the archivist of the United States determines that records from a past administration are properly to be released under the PRA. The archivist notifies both the former president and the incumbent president of the determination. There is then a 60-day period during which the former president may review the records and decide whether to invoke privilege. If the former president decides to invoke privilege, the archivist consults the incumbent president to see if the incumbent agrees. If the incumbent concurs in the claim, the archivist is barred from releasing the requested documents except pursuant to a court order. If the incumbent disagrees, the documents are released 90 days after originally demanded, unless a court commands otherwise. That’s where we are now; Trump has asserted privilege, and Biden has registered his disagreement.

No past judicial decision squarely addresses the scope of a prior president’s privilege when the incumbent declines to endorse it. The issues are confusing because “executive privilege” technically embraces a number of privileges that presidents enjoy against the compulsory disclosure of executive branch information. The materials enjoying the greatest protection are those that bear directly on foreign and military affairs, which are covered by the “state secrets” privilege. The variety of executive privilege most likely at stake in Trump’s suit, however, is what’s called the “qualified privilege,” which applies to a president’s personal communications.

In 1974, for the first time, the Supreme Court held in the Nixon tapes case that presidential communications are presumed to be protected by the privilege. The Constitution makes no mention of executive privilege; the Court, however, concluded that protection for the confidentiality of presidential communications “can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties.” The president’s effective ability to function depends in part on “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.”

The privilege for presidential communications, however, is not absolute. As the Court explained, “When the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of [presidential] conversations,” the president’s interest in confidentiality needs to be weighed against the importance of the information at issue to the ability of the other branches of government to fulfill their own constitutional responsibilities. Regarding the Nixon tapes, the Court determined that Nixon’s privacy interests were outweighed by the importance of the tapes to the judiciary’s capacity to fulfill its functions in the trial of the Watergate defendants. Regarding any Trump communications that bear on the events of January 6, his generalized privacy interest is even more obviously exceeded by the importance of disclosure to the January 6 Committee in order that Congress may produce a full understanding regarding the events of that infamous day.

For his part, George W. Bush, while president, issued an executive order that purported to bind incumbent presidents to advance the privilege claims of their predecessors “absent compelling circumstances.” On his first full day in office, however, Barack Obama revoked the Bush order and reinstated a system that leaves to the current president an unencumbered discretion whether or not to support a former president. Because executive privilege exists to protect the presidency as an institution, not any particular president in a personal capacity, this is plainly the preferable understanding.

In upholding the 1974 Presidential Recordings and Materials Preservation Act, the Court recognized that neither President Gerald Ford, when he signed the act, nor President Jimmy Carter, as the incumbent president, supported Nixon’s general separation of powers objections. This disagreement by other presidents, the Court said, “detracts from the weight of [Nixon’s] contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch.” As viewed by the Court, a former president might be entitled to register an executive privilege claim—but “it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” As the Harvard law professor Daphna Renan, reflecting on the Court’s approach, has persuasively argued, “When [a] former president’s assertion of the privilege contravenes the incumbent’s position,” the past president’s “power to claim the privilege might be understood to be at its lowest ebb.”

If Trump’s suit reaches the Supreme Court, he will face two other problems. In its decision on the Nixon tapes, the Court explicitly declined to decide whether executive privilege claims based on presidential confidentiality could be invoked against Congress (rather than, say, federal courts). Since that decision, Congress and the White House have proceeded as if a similar balancing test were still appropriate, and the Roberts Court seems inclined to such an approach. If pushed in this instance, however, Congress might well choose to press an “originalist” argument that the Constitution, as understood in 1787, did not provide for any executive privilege to withhold information from Congress. That argument has been raised, for example, by the University of Virginia law professor Saikrishna Prakash, one of the foremost promoters of an originalist interpretation of Article II of the Constitution. Prakash, most often a staunch defender of presidential authority in domestic affairs, has urged Congress to “openly declare that executive privilege does not apply to matters of congressional oversight.” In his most recent book, The Living Presidency, he argues that “the absolute need for congressional oversight of the executive rests on unassailable constitutional foundations.”

Even worse for Trump, however, the executive branch itself has taken the position that executive privilege may not be invoked to impede investigations of governmental wrongdoing. As stated in a Reagan-era opinion of the Office of Legal Counsel, a “limitation on the assertion of executive privilege is that the privilege should not be invoked to conceal evidence of wrongdoing or criminality on the part of executive officers.” As president, Trump ignored this norm during impeachment proceedings against him; nonetheless, the OLC opinion testifies to a well-established understanding that Congress’s interest in unearthing executive branch neglect or malfeasance outweighs any generalized interest in presidential confidentiality.

As we have seen before, the purpose of litigation by Trump and his associates in resisting congressional oversight seems to lie more in the capacity for delay than in the hope of legal vindication. Delay might be the inevitable by-product of Trump’s litigation strategy now. Ultimately, however, Congress should get hold of the documentation it seeks concerning Trump’s involvement in the events of January 6. As Trump—aided and abetted by his acolytes—persists in purveying his election fraud lies, fidelity to the Constitution requires that Congress and the public get the truth, the whole truth, and nothing but the truth about January 6.

Peter M. Shane

Follow Peter M. on Twitter @petermshane. Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at Ohio State University. His publications include Madison’s Nightmare: How Executive Power Threatens American Democracy (2009) and Democracy’s Chief Executive: What the Constitutional Presidency Means Today, forthcoming from the University of California Press in 2022.