Donald Trump
Then-President Donald Trump gestures as he arrives to speak at a rally in Washington, on January 6, 2021. (AP Photo/Jacquelyn Martin)

Last Friday, former White House Chief of Staff Mark R. Meadows filed a Supreme Court brief asking for “a prompt answer” to the question of whether Donald Trump has legitimate grounds to shield White House records from the House Select Committee to Investigate the January 6th Attack on the United States Capitol. Even if Trump were entitled to claim executive privilege, it is not clear that Meadows or other recipients of committee subpoenas could lawfully resist appearing before the committee. But should the Court decide against Trump, its decision would, as the Meadows brief suggests, “narrow—if not altogether eliminate—the dispute between the Select Committee and the targets of its investigation” concerning their obligation to cooperate.

A three-judge D.C. Circuit panel ruled unanimously a month ago that Trump was not entitled to block the National Archives from sharing his presidential records with the committee. That opinion was just one of December’s two important judicial decisions joining the burgeoning volume of Trump’s post-election legal losses. A federal district court judge in the District of Columbia had also rebuffed a Trump suit to prevent the Treasury Department from sharing his tax returns with the House Ways and Means Committee. Both results were predictable. Both decisions deserve to be upheld against appellate challenges, whether in the D.C. Circuit or before the Supreme Court.

In his post-election attempts to resist accountability to Congress, Trump faces a two-pronged problem. First, he is no longer president. Judges no longer confront a common uncertainty in separation of powers cases—namely, the choice between deferring to the presidency as an impersonal institution and judging a specific president more rigorously in their personal capacity. Governmental units, that is, always appear in twin garb. The “Congress” Trump is resisting is both the immortal institution and its actual, mortal members. The “Treasury Department” is both the permanent department established by law and its contemporary officers. But as of now—gestures of judicial respect notwithstanding—former President Donald J. Trump is just Citizen Donald J. Trump. As the D.C. Circuit opinion says, “Under our Constitution, we have one President at a time.” 

Trump’s second problem is that post-presidency conduct—including his persistence in the lies that helped motivate the January 6 insurrection—reveals him to be a singularly inappropriate person to advocate for the legitimate interests of the presidential office.

Trump’s suit against the National Archives turned on the question of whether a former president can block the disclosure to Congress of a prior administration’s records, even if the current president determines that they should be turned over. To ask that question is to all but answer it. Citing Supreme Court precedent, the D.C. Circuit took note that executive privilege is “held by the Executive Branch, ‘not for the benefit of the President as an individual, but for the benefit of the Republic.’” It “resides with the sitting President,” who is “in the best position to assess the present and future needs of the Executive Branch.” Regarding the documents Trump has attempted to shield,

President Biden concluded that a claim of executive privilege as to the specific documents at issue here is “not in the best interests of the United States,” given the “unique and extraordinary circumstances” giving rise to the Committee’s request, and Congress’s “compelling need” to investigate “an unprecedented effort to obstruct the peaceful transfer of power” and “the most serious attack on the operations of the Federal Government since the Civil War.”

President Biden concluded that a claim of executive privilege as to the specific documents at issue here is “not in the best interests of the United States,” given the “unique and extraordinary circumstances” giving rise to the Committee’s request, and Congress’s “compelling need” to investigate “an unprecedented effort to obstruct the peaceful transfer of power” and “the most serious attack on the operations of the Federal Government since the Civil War.”

The panel wrote that it would not second-guess Biden’s conclusion, especially given Trump’s “failure to make any relevant showing of a supervening interest in confidentiality that might be capable of overcoming President Biden’s considered and weighty judgment.” The institutional perspective, in other words, favors Biden.

Trump’s other loss, the tax returns case, involved Trump’s effort to block the Treasury Department from fulfilling a plain, explicit statutory duty to supply his tax returns to the House Ways and Means Committee at the request of its chairman, Representative Richard Neal. (Federal law provides protection for the privacy of tax returns—but makes a conspicuous exemption for the chairman of Ways and Means, for whom it provides that the secretary “shall furnish … any return or return information specified in [the chairman’s] request.”) Trump argued that the request was rendered illegitimate by a taint of political motivation among the mix of purposes animating Neal’s inquiry. On this occasion, it was again the institutional Congress and not Citizen Trump who received judicial deference. Information in a former president’s tax returns, District Judge Trevor McFadden properly found, would be plainly relevant to the possibility of legislation concerning the auditing of tax returns by sitting presidents. The Supreme Court, in earlier decisions, had cautioned lower courts, when judging legislative requests, not to “go beyond the narrow confines of determining that a committee’s inquiry may fairly be deemed within its province.” Statements by congressional Democrats hoping to expose Trump as a corrupt individual were thus “irrelevant to the court’s analysis,” he wrote. As for Trump, conflict between Congress and him was no longer an “interbranch conflict”; the executive branch, now headed by Biden, had already agreed that it was duty-bound to provide Trump’s returns. Any burdens imposed on Trump would inconvenience him only in his “individual capacit[y].” No hint of disrespect for Trump, either institutional or personal, appears in McFadden’s opinion. But, the judge concluded, “even the special solicitude accorded former Presidents does not alter the outcome.”

These decisions highlight what the NYU law professor Richard Pildes has helpfully identified as a defining tension in our public law. He describes it as the tension between “institutional formalism” and “institutional realism.” When a court in the “formalist” mode applies law to government action, it evaluates the behavior of governmental institutions—such as Congress or the president—“at a high level of abstraction and generality.” In other words, a formalist judge sees the conflict as involving eternal institutions and gives no regard “to the particular persons who happen to occupy the relevant offices, or to the ways in which the institution actually functions in particular eras in which the institution is embedded within distinct political, historical, and cultural contexts.” Trump lost both recent cases because the courts used the formalist approach toward existing officeholders. Trump’s opponents in litigation, whether Congress or the incumbent executive, received the deference due their offices, not as politically motivated actors.

A court operating in a more realist mode will go beyond assessing “the powers and properties of [an] institution at a general, essentialized level.” Instead, realist judges may consider more historically contingent factors, including the unofficial statements and informal actions of the officeholders targeted in a lawsuit. The Supreme Court’s 2019 decisiondisallowing the inclusion of a citizenship question on the 2020 census is a perfect example. The Court majority did not doubt that, properly explained, the institutional Commerce Department could have included such a question in its survey. But, the Court found, “the evidence tells a story that does not match the explanation the Secretary gave for his decision.” Appropriate deference to the department, Chief Justice John Roberts wrote for the Court, did not require the Court to exhibit “naïveté” about the secretary’s disingenuousness as the actual officeholder.

Whether courts should have treated then President Trump as “the executive branch” or as the person Donald J. Trump became a focus of heated debate early in the Trump administration. The first Supreme Court decision to dramatize the question was Trump v. Hawaii, which upheld Trump’s travel ban predominantly targeting majority-Muslim countries. Opponents argued that Trump’s order was impermissibly tainted by what Justice Sonia Sotomayor, in her dissent, called the “harrowing picture” of Trump’s anti-Muslim rhetoric extending back throughout his campaign—odious statements “from which a reasonable observer would readily conclude that his proclamation was motivated by hostility and animus toward the Muslim faith.” Sotomayor’s was an assessment of “the president” based on the person who was president.

Speaking for a five-justice majority, however, Roberts steadfastly took the formalist view. The Court, he wrote, was legally bound to “uphold [Trump’s] policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” According to Roberts, the issue before the Court was “not whether to denounce [Trump’s] statements.” The issue, for the majority, “was the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” “In doing so,” Roberts insisted, the Court “must consider not only the statements of a particular President, but also the authority of the Presidency itself.” This is the voice of institutional formalism.

Resisting what he no doubt considers an illegitimate return to the status of mere mortal, Trump has tried to create an institutional aura around his status as a former president. A few days after Biden’s inauguration, Trump formally opened what he called the Office of the Former President at Mar-a-Lago—as if there were any such public office. In the hope of eliciting judicial deference, he has taken to filing lawsuits as “Donald J. Trump, in his Capacity as the 45th President of the United States.” Unfortunately for Trump, that capacity, as the old saying goes, plus $2.75 will get you a ride on the New York City subway (at least until they raise the fare). To be a former president is to be a citizen of the United States, neither more nor less. A former president carries no institutional status of constitutional dimension that warrants judicial “naïveté” about who he is.

In hopes of eliciting some of the deference that might be accorded a past president if that past president were trying to protect the office and not himself, Trump’s court filings cast him as a kind of fiduciary for the presidency. The complainthe filed against the January 6 committee insists that acceding to the committee’s demands of the National Archives “would destroy the very fabric of our constitutional separation of powers and invade fundamental privileges designed to maintain the autonomy and functioning of the Executive Branch.” His petition for Supreme Court review of the National Archives order claims that the harms of forced disclosure “would not only befoul President Trump’s interests in maintaining the confidentiality of his presidential records, but the harm would extend to future Presidents as well. This violation would be a substantial blow to the institution of the presidency.” It is predictable that, in appealing Judge McFadden’s tax disclosure decision to the D.C. Circuit, Trump will likewise argue that he is resisting transparency on behalf of future presidents.

Unfortunately for Trump, all but the most blinkered judge would recognize that Trump, the individual, is a horrible fiduciary for the presidency as an institution. No past president with an iota of concern for the institutional presidency would be engaged in a campaign of wanton lies about his successor. No past president with an iota of concern for the institutional presidency would persist in propagating the fantasy that the election he lost was illegitimate. And, of course, no past president would seem a protector of the institutional presidency if he were all-too-plausibly suspected of, while in office, having had a hand in enabling a violent attack on Congress precisely to stop the peaceful and orderly transfer of power.

Indeed, except as institutionalism might prove convenient as a shield in dodging accountability, Trump as president was shockingly contemptuous of any conception of the presidency that did not focus on him as a political personality. As the Harvard law professor Daphna Renan wrote, the office of president—seen in wholly institutional terms—“would be comprised of certain features—deliberative practices, substantive commitments, norms, and institutions—that are not within the incumbent’s control.” That is, from an institutionalist perspective, the legitimacy of presidential action depends on respecting decision-making protocols that the president inherits from past government practice; on collaboration with administrative agencies and respect for coequal branches of government that have their own sources of legal authority; and on allegiance to long-term constitutional values, not just short-term political interests. Seen institutionally, presidential power thus stems not from the charisma of the incumbent, but, as Renan put it, “from the accumulated understandings and practices of the presidency over time—in ways that both empower and bind the current occupant.” Trump, of course, would have none of this. From his first to his last day in office, Trump insisted that the administration’s decisions and achievements were his doing and his property. Norms, deliberation, respect for the career civil service or for Congress—all for losers.

Nor were President Trump’s lawyers willing to accord ordinary institutional deference to Congress or the courts. Rather, he and his minions repeatedly attacked the other branches of government in personalistic terms. In 2019, then Treasury Secretary Steve Mnuchin refused to comply with the statutory duty to share Trump’s tax returns with House Ways and Means because the Office of Legal Counsel determined “that it was reasonable to conclude that the Committee’s asserted interest in the IRS’s audit of presidential returns was pretextual, and that the true aim was to make the President’s tax returns public.” The statute, it bears noting, requires no statement at all, but simply says the secretary “shall” turn over the returns. In other words, the OLC thought the treasury secretary was entitled to look beyond any facially legitimate purpose the committee might offer for its request. If the secretary thought the real purpose for the request was illegitimately partisan, administration lawyers argued, he could just ignore the statute. (The Biden administration last July took the unusual step of withdrawing and reversing that OLC opinion. It found that the 2019 OLC “failed to accord the respect and deference due a coordinate branch of government.”)

Given the high stakes in holding Trump to account—and especially considering the January 6 attack on Congress—it is imperative that courts view Trump for who he is and not as fiduciary for the executive branch. A former president whose interest in the institution while in office went only as far as he could bend it to his personal will should not now receive deference as a guardian of legitimate executive authority. The D.C. Circuit called Trump’s executive privilege complaint “a grab-bag of objections that simply assert[s] without elaboration his superior assessment of Executive Branch interests, insists that Congress and the Committee have no legitimate legislative interest in an attack on the Capitol, and impugns the motives of President Biden and the House.” This is a court that sees past Trump’s pretensions to possessing some self-aggrandizing post-presidential quasi-official capacity. I suspect that the Supreme Court—explicitly or not—will do the same.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane