Trump, though, has tried to assert executive privilege over at least 750 sensitive pages, contending that although he’s a former president, he maintains the power to shield his own records. Those documents include daily presidential diaries, schedules, appointment information, drafts of speeches, correspondence, handwritten notes, call logs, talking points, memoranda and email chains, according to the National Archives.
The files at issue are drawn from former Chief of Staff Mark Meadows, former adviser Stephen Miller, former deputy White House Counsel Patrick Philbin and former Press Secretary Kayleigh McEnany, among other top Trump aides. The National Archives has identified the documents in periodic batches since early September and expects to produce additional tranches in the coming months. Trump has made at least four assertions of executive privilege, most recently on Nov. 15, in a bid to prevent portions of those records from going to House investigators.
Revealing the pages, Trump’s attorneys argue, would erode the ability of all future presidents to protect the sanctity of private discussions with aides and expose them to “harassment†by opposition-party Congresses.
“Every Congress will point to some unprecedented thing about ‘this President’ to justify a request for his presidential records,†Trump lawyers Justin Clark and Jesse Binnall wrote in a brief filed with the appeals court last week.
A district court judge has already rejected that argument.
Although the Supreme Court has ruled that former presidents retain an unquantified degree of control over their old records, there is no clear legal precedent granting them power to override the sitting president’s decision to release them to Congress.
Biden, in the current dispute, has declined to assert executive privilege over the hundreds of pages in question, save for a small number of documents the House agreed not to seek for the time being. U.S. District Court Judge Tanya Chutkan determined that overruling the current president at a former president’s behest would upset the balance of power between the executive and legislative branches.
“Presidents are not kings and plaintiff is not president,†wrote Chutkan, an appointee of former President Barack Obama.
Chutkan ruled that only the sitting president is suited to determine how to protect the institution and that a former president’s interest in his own documents can’t override the incumbent. That’s especially true in a case when Congress and the sitting president are in agreement, a rarity in modern disputes over access to documents, she wrote.
All three judges on the panel were appointed by Democratic presidents. Jackson is Biden’s only appointment so far to the powerful D.C. circuit court, while Millett and Wilkins were appointed by Obama.
If the panel agrees with Chutkan’s decision, it could deal a fatal blow to Trump’s push to maintain the secrecy of his pre-Jan. 6 maneuvers. Though he would likely appeal to the full bench of the appeals court or to the Supreme Court, a ruling against him is bound to spark an urgent race by the committee to obtain the documents and fight any efforts to stay the ruling during an appeal.
The most memorable executive privilege fight involving a former president in the modern era involved Richard Nixon’s efforts to maintain control over his White House records in the wake of his 1974 resignation due to the Watergate scandal. The Supreme Court ruled that Nixon, as a former president, still retained a degree of control over his White House’s tapes and documents, but the high court’s decision didn’t flesh out the details.
That ruling helped prompt Congress to pass the Presidential Records Act, which governs the handling of White House documents after presidents leave office. While Trump’s attorneys predict catastrophe if Congress gets access to his White House records, under that federal law passed in 1978, most White House records of former presidents become eligible for release to the public 12 years after the president in question leaves office.
Until that time, the law permits former presidents to request that the sitting president — in this case Biden — assert executive privilege on their behalf to block release. If the incumbent refuses, the former president may seek a court order blocking the release of his documents. But in the four decades since, no sitting president has ever disagreed with a former president’s assertion of privilege, meaning the issue has never been litigated until now.
Justice Department lawyers arguing on behalf of the National Archives have forcefully backed the House’s position, noting that presidents on numerous occasions have willingly waived executive privilege to support investigations of national significance.
That includes Nixon in 1973 permitting aides to testify to Watergate investigators, former President Ronald Reagan authorizing testimony in the Iran-Contra affair and Trump himself declining to block former FBI Director James Comey’s testimony to Congress or the release of special counsel Robert Mueller’s report.
Often sitting presidents negotiate a resolution on a former president’s behalf, but not all such disputes have ended with accommodations. In 1953, former President Harry Truman cited executive privilege in refusing a subpoena to testify before the House Un-American Activities Committee. No action was taken against him.
“It is just as important to the independence of the Executive Branch that the actions of the president should not be subjected to questioning by the Congress after he has completed his term of office as that his actions should not be questioned while he is serving as president,†Truman said at the time, an anecdote Trump and his allies have cited in earlier legal briefs. “In either case, the office would be dominated by the Congress and the presidency might become a mere appendage of Congress.â€
Justice Departments of both parties have adopted Truman’s thinking that current and former presidents — and their top aides — are immune from compelled testimony to Congress. But Truman’s argument about the rights of a former president have found little resonance in subsequent court rulings.
