The Losing Streak of Trump’s Executive Privilege Claim

A loss at the U.S. Court of Appeals is all but certain to follow the disgraced former president’s loss in the district court.

On November 9, federal District Judge Tanya Chutkan rejected Donald Trump’s claim that “executive privilege” barred the disclosure of documents from his White House term to the House Select Committee to Investigate the January 6th Attack on the United States Capitol. Given the gravity of the investigation, the court’s bottom line was foreseeable. Two days later, also predictably, a three-judge panel of the D.C. Circuit issued an order that temporarily blocked release of the disputed records until that court could rule on Trump’s appeal. Each side now has less than two weeks to file briefs, and the panel has set oral argument for November 30. The next unsurprising moment should occur when, perhaps even before Christmas, the panel upholds Chutkan’s decision unanimously. It is unlikely that the U.S. Supreme Court will involve itself in this dispute before the appeals process is completed, if ever.

Trump’s dispute with the January 6 committee arises in a factually unprecedented context. The Presidential Records Act of 1978 (PRA), under which the committee requested Trump’s records from the National Archives and Records Administration, covers requests by a former president to block the release of records from their administration: If a former president invokes privilege, the statute says, the head of NARA, the archivist of the United States, consults the incumbent president to see whether the incumbent agrees with the claim. If the incumbent disagrees, the records at issue are released 90 days after originally demanded by investigators—unless the former president can convince a court that privilege should apply. Chutkan’s opinion notes that the January 6 investigation “presents the first instance since enactment of the PRA in which a former President asserts executive privilege over records for which the sitting President has refused to assert executive privilege.”

Chutkan’s analysis is framed by four basic propositions well established by Supreme Court precedent. The first is that there does exist an implicit constitutionally based privilege that presidents may invoke to protect their communications while in office. Although the Constitution does not mention such a privilege, the Court held in the 1974 “Watergate tapes” case, United States v. Nixon, that some level of protection for the confidentiality of presidential deliberations is implicit in the separation of powers.

The second proposition is that the presidential privacy privilege is not absolute, but “qualified.” “When the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of [presidential] conversations,” the Court held, a president’s interest needs to be weighed against the information’s importance to the ability of the other branches to fulfill their own constitutional responsibilities. For the Watergate criminal prosecution, the Court found that the interest of the courts in the full and fair trial of the Watergate defendants outweighed Nixon’s generalized interest in privacy. It seems clear that the interests of the January 6 committee in a full understanding of the assault on Congress will ultimately outweigh Trump’s generalized interest in confidentiality.

The third proposition is that a claim of executive privilege may be levied even by a past president. The Court so concluded in Nixon v. Administrator of General Services, which upheld the 1974 Presidential Recordings and Materials Preservation Act against a separation of powers challenge by former President Nixon. Extending the privilege to former presidents makes sense even if you assume that the privilege exists to protect the institution of the presidency and not any one individual. Unless an incumbent president is fully alerted to the sensitivities accompanying documents from an earlier administration, they may not fully appreciate the appropriateness of maintaining that material’s confidentiality. No one is better situated than the former president to alert the incumbent to such sensitivities. Both the PRMPA covering Nixon’s Watergate records and the PRA now in force recognize such claims.

The final proposition, however, is that an incumbent president’s decision whether to support a former president’s privilege claim is important to evaluating the claim. When Nixon challenged the PRMPA, neither Gerald Ford, who signed the act, nor Jimmy Carter—then the incumbent president—supported Nixon’s position. The disagreement of Nixon’s successors, 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.” Regarding disputes between presidents that would arise concerning the invocation of privilege, “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.”

The sum of these four propositions seems to point inexorably to Trump’s defeat. Yet, unfortunately for a district court judge, neither the Supreme Court nor the D.C. Circuit has crystallized these propositions into a clear standard that covers the unprecedented posture of Trump v. Thompson. A judge in Chutkan’s position needs to know just how much deference Congress is owed when they balance the competing interests of the executive and legislative branches in the face of an executive privilege claim that the incumbent president does not support: How great a demonstration of need does a congressional committee have to make in order to satisfy the court that, in a case like Trump’s, the legislative interests are weightier?

Earlier decided cases regarding claims by incumbent presidents provide some clues. Evaluating a lower court order that Nixon produce his tapes for the prosecution of the Watergate defendants, the Supreme Court said in 1974 that the interest of the judiciary in disclosure sufficed to overcome then President Nixon’s interest in confidentiality. The reason: The judicial branch had a “demonstrated, specific need” for the tapes as evidence. Perhaps that’s the relevant test.

Earlier that year, the D.C. Circuit had decided Senate Select Committee on Presidential Campaign Activities v. Nixon, rebuffing the Senate Watergate Committee’s demand for access to the tapes because it couldn’t show a “demonstrably critical need” for the tapes in order to fulfill its own responsibilities. The D.C. Circuit reasoned that the House Judiciary Committee, looking into the prospect of impeaching Nixon, would likely already have access to all the information Congress needed to fulfill its oversight role regarding Watergate. Hence, applying a formulation much like the Supreme Court’s “demonstrated, specific need” standard, the court determined that respect for the separation of powers at that moment favored Nixon’s interests over the Senate’s.

The conundrum for Chutkan, however, was that both Nixon precedents involved executive privilege claims by an incumbent president, regarding materials that were properly within the scope of that privilege. Trump is not the incumbent, and the incumbent has declined to claim privilege. In such a situation, perhaps the balance of interests should not tilt as protectively toward confidentiality as it did in either Nixon litigation. Maybe the case should be handled as if Trump were owed no more than the respect a president is due for personal papers that lie beyond the scope of executive privilege altogether.

As it happens, the Supreme Court last year decided just such a case. In Trump v. Mazars, LLP, the Court laid out a four-element framework for balancing the elected branches’ interests when a congressional committee seeks access to a president’s personal records that are beyond the scope of executive privilege. Out of respect for the presidential office—and even though no constitutional privilege attached to Trump’s tax records—a trial judge who is asked to review a congressional subpoena for nonprivileged presidential documents should “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.” Second, “courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.” Third, “courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress’s legislative purpose, the better.” Finally, “courts should be careful to assess the burdens imposed on the President by a subpoena.”

The Court prefaced its discussion of the “Mazars factors,” as they are now called, by emphasizing that they are not as demanding as the “demonstrated, specific need” test of Nixon. To my mind, however, the difference between requiring a committee to have a “demonstrated, specific need” for information—the Nixon test—versus demanding information in terms “no broader than reasonably necessary” for doing its job—the Mazars test—seems vanishingly small.

Chutkan’s path through this thicket was to adopt the Mazars approach; she noted, however, that Trump had been the incumbent at the time of Mazars. The test might be less demanding, she suggested, now that Trump is a former president. A former president protecting nonprivileged documents might not merit the same judicial solicitude as an incumbent president.

However, Chutkan quickly laid waste to the proposition that Congress lacked a “valid legislative purpose” weighty enough to support the committee’s document request. She correctly identified as “a straw man” the argument that Congress needs to “identify specific [proposed] legislation within the context of a demand for documents or testimony.” The January 6 committee investigation clearly addresses a subject on which legislation might be proposed and for which a complete picture of the events of January 6 would be plainly relevant. And as the Supreme Court said more than 60 years ago, Congress is entitled “to inquire into and publicize corruption, maladministration, or inefficiency in agencies of the Government.” Congress’s legitimate net may certainly extend to the White House. Chutkan likewise followed a Supreme Court admonition of nearly a century ago: In evaluating congressional demands for information, courts “are bound to presume that the action of the legislative body was with a legitimate object, if it is capable of being so construed.”

Her opinion also deals persuasively with Trump’s objections to the breadth of the committee request of the National Archives. That request was incontestably drawn in the broadest possible terms, covering not only records relating directly to Trump’s January 6 activities but also what Trump’s complaint calls “vast swaths of information, including all documents and communications [involving Trump and dozens of advisers] related to the 2020 election, from April 1, 2020, through January 20, 2021.” Chutkan pointed out, however, that the National Archives has control over, and thus can potentially disclose, only what the Presidential Records Act defines as “presidential records.” In the statute’s words, election-related documents that do not “relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President” would not be covered—they are not “presidential records” under the act. The statutory definitions thus substantially narrow the reach of the committee’s information request and make it more specific.

The D.C. Circuit panel that will hear Trump’s argument will have to decide for itself whether Chutkan correctly inferred which rule applies and whether she applied it correctly. I suspect that they will affirm her order unanimously. It was Trump’s bad luck to draw the panel of Judges Patricia Millett, Robert Wilkins, and Katanji Brown Jackson—not only because it comprises two Obama appointees and one by Biden, but also because they are notably careful judges who will not carelessly understate the committee’s burden of justification. I would not be surprised if they determined that the committee’s request meets even the stringent requirement of “demonstrated, specific need.”

The Court of Appeals might also deal with one accusation that Chutkan ignored but was levied in Trump’s complaint—that “the Biden Administration’s waiver of executive privilege is a myopic, political maneuver designed to maintain the support of its political rivals.” (Read literally, the complaint seems to imply that Biden is worried about fending off challengers in his own party, a far-fetched possibility at this point.)

Had Trump’s lawyers been more coherent, they could have suggested that an incumbent president might have ulterior motives: They might hypothetically care less about maintaining the executive branch’s institutional interest in confidentiality and more about potentially embarrassing a future electoral opponent—in this case, Trump. The problem with that argument, however, is that it works both ways. Because Trump might well run again for president—he has all but declared—his own privilege claim might just as easily be motivated by factors more electoral than institutional. Both the incumbent and his predecessor could thus have mixed motives in deciding whether an executive privilege claim is appropriate. Given their differing stances, it seems inevitable that it will be the incumbent to whom greater deference is given. As the Supreme Court has said, the incumbent is best positioned “to assess the present and future needs of the Executive Branch.” And, after all, the incumbent knows he will eventually be a former president himself, and at some point, there will be a successor who belongs to a different political party. For political as well as institutional reasons, an incumbent is unlikely to be cavalier in failing to uphold a predecessor’s privilege claim.

The final bit of the puzzle is whether the Supreme Court will ultimately involve itself in this dispute and, if so, when. The Court will not likely want to short-circuit the Court of Appeals (pun intended) by taking the case early—the matter is already moving at an expedited pace. Beyond that, the Court’s right-wing majority is on the defensive for the appearance of politicized decision making in its emergency, or “shadow,” docket. Perhaps understanding as much, Trump’s lawyers have not attempted an end run around the D.C. Circuit. But even in the face of what is likely to be a compelling Court of Appeals opinion, the Supreme Court might grant certiorari based on the gravity of the context. Alternatively, precisely for the same reason, the Court might not want to seem to interfere with an investigation into an insurrection even the Court’s most right-wing members would hardly wish to defend.

For all the legal technicalities involved in this dispute, one fundamental truth ought to prevail: It would be a damning statement about the state of our democracy if a court deemed the confidentiality interests of a former president—engaged in an unrelenting and reprehensible campaign of lies to delegitimate his electoral loss—to outweigh the interest of Congress in finding out the full story of Trump’s involvement in the events of January 6. In this fight, the interests of the American people align entirely with those of the January 6 committee. If the D.C. Court of Appeals, through a well-written decision, allows the National Archives to fulfill Congress’s demands, the Supreme Court would do well to stay out of the way.

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Peter M. Shane

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.