Future Invocations of Executive Privilege

Introduction

On January 6, 2021, a mob stormed the United States Capitol in an effort to overturn the 2020 presidential election results. The House of Representatives subsequently created the Select Committee to Investigate the January 6th Attack on the United States Capitol (the “Select Committee”). The Select Committee is tasked with investigating and reporting on the “facts, circumstances, and causes relating to” the January 6th attack.[1] The Select Committee requested presidential records related to the events of January 6th from the Archivist of the United States. Former President Donald Trump promptly filed a civil action, which largely rested on his assertion of executive privilege, to prevent the disclosure of said records. President Joseph Biden refused to invoke executive privilege and instead supported the Select Committee’s request. After preliminary injunctive relief was denied in the lower courts, the United States Supreme Court declined to intervene. In the battle over executive privilege, President Biden has prevailed over President Trump; the incumbent president, over the objections of the former, will always have the final say in future invocations of executive privilege.

Legal Precedent and Relevant Statutes

Executive privilege, which is the right of the president to maintain confidential communications, is not explicit in the text of the United States Constitution. Rather, executive privilege is “inextricably rooted in the separation of powers under the Constitution.”[2] The privilege is not absolute and can be overcome under the Nixon and Senate Select Committee tests.[3] Executive privilege serves to protect the interests of the Executive Branch, not the interests of an individual president.[4] Under the current statutory scheme, presidential records, which include confidential communications, are classified as public.[5] The Archivist of the United States assumes the “responsibility for the custody, control, and preservation of, and access to, the Presidential records” once a president departs from office.[6] When a request for a former president’s records is made to the Archivist, the former president retains the right to assert executive privilege over their records.[7]

Trump v. Thompson

On August 25, 2021, the Select Committee requested from the Archivist communications, documents, and media generated by President Trump and certain senior executive branch officials on January 6, 2021. The scope of the request also spanned between December 1, 2020, and January 20, 2021.[8] After receiving notice from the Archivist of his intent to disclose to the Select Committee the requested documents, former President Trump filed suit in the District Court for the District of Columbia and sought preliminary injunctive relief. President Trump argued, inter alia, the requested documents were protected under executive privilege.[9] President Biden, the incumbent president, refused to assert the privilege and instead reached an agreement with the Select Committee to provide them with the requested documents.[10] President Trump argued this waiver of the privilege held no bearing because the Select Committee’s request nonetheless served no valid legislative purpose.[11] The district court found President Trump’s arguments unpersuasive and ruled he could not prevail on a motion for preliminary injunction.[12] The Court of Appeals for the District of Columbia Circuit affirmed the denial of preliminary injunctive relief. The Supreme Court declined to enter a stay of mandate and injunction pending review and later did not issue a writ of certiorari. Immediately following the Supreme Court’s denial of certiorari, the Archivist began to provide the Select Committee with the requested documents. Although further proceedings are ongoing in the district court, President Trump was unable to prevent the disclosure of the records, effectively putting an end to his civil action.

Analysis

President Trump’s civil action presents unprecedented questions about “whether and in what circumstances a former president may [invoke executive privilege] . . . in the face of a determination by the incumbent president to waive the privilege.”[13] As the Supreme Court noted, the court of appeals did not conclusively resolve these questions. Although any discussion about President Trump’s former status is “nonbinding dicta,” it is evident that the incumbent has prevailed.[14] This is because President Biden is “in the best position to assess the present and future needs of the Executive Branch.”[15] As such, deference is given to the incumbent president when a dispute arises with the former. President Trump’s disagreement with President Biden’s decision to not assert executive privilege is not enough for a court to provide injunctive relief and override the incumbent’s judgment. President Biden’s determination that invocation of the privilege is not warranted “detracts from the weight” of President Trump’s assertion.[16] It is well established that President Biden is best suited to make determinations that concern the Executive Branch. Because of the unique position of the incumbent president, the scales will consistently tilt against the former.

Conclusion

Only the incumbent president is vested with the executive power.[17] A disputed assertion of executive privilege made by a former president can only survive with the backing of the incumbent. The incumbent president gets to make the final determination regarding executive privilege. The unprecedented attack on the United States Capitol reflects the first time in over a century that the transfer of executive power was not peaceful. President Biden recognized the Select Committee’s momentous task of investigating and reporting on the January 6th attack. To help ensure “nothing similar ever happens again,” President Biden waived executive privilege over the documents requested by the Select Committee.[18] President Trump’s contrary assertion of the privilege could not overcome President Biden’s waiver. President Biden, and incumbent presidents alike, will always have the final say over future invocations of executive privilege.