As an ousted President, how can Trump still claim executive privilege?

[zanana1]

I was under the impression that, once out of office, executive privilege ends. WTH?

[Walleye]

1. There's no executive privilege when he's talking to congressman anyway

[zanana1]

3. Call me a little dense, but I still don't get it.

Trump used executive privilege often while in office, but it seems now that he still has power.

[Walleye]

5. I think Trump will take any power that we don't prevent him from taking

[KPN]

12. THIS.

[rickyhall]

2. He's the Number One Narcissistic Idiot.

[we can do it]

4. He can't.

[FBaggins]

6. Yes. Former presidents can still claim the privilege

for things that occurred while they were president

Of course - even for sitting presidents, there's a difference between claiming a privilege and actually winning that argument in court.

[StarfishSaver]

8. Trump can't invoke executive privilege over those communications, but Biden can

[FBaggins]

10. I'm not sure what communications are being discussed

I was merely responding to the question of whether or not former presidents can still envoke the privilege.

[StarfishSaver]

22. CORRECTION: Former presidents can invoke the privilege

ON EDIT - I stand corrected by FBaggins (thanks). A former president can try to invoke the privilege.

[FBaggins]

26. See my reply #15

The court disagreed with your position.

[FBaggins]

30. Emphasis on "try"

I still don't know the particulars, but my bet is that he doesn't expect to ultimately win on that claim, just run out the clock.

[obamanut2012]

14. No, he cannot

Biden can say Trump's comms can have it if he wishes to, but Trump cannot.

[StarfishSaver]

20. I think you were responding to someone else

[zanana1]

9. Thanks for that.

Now I'm wondering if he can block an investigation if he is the target of that investigation.

[StarfishSaver]

23. He has no authority to block investigations any more.

Also, I was mistaken. A former president CAN assert executive privilege.

[StarfishSaver]

7. Trump can no longer claim executive privilege because he's not a sitting president

Only is sitting president can invoke executive privilege. But he can invoke the privilege for his predecessor's communications while in office.

[FBaggins]

15. Not quite

"We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them." (Nixon v. Administrator of General Services)

It can be argued that in asserting the claim, a former president is invoking the current president's privilege. And that, as a consequence, the sitting president could decline to defend that claim. That's an open question, but you certainly can't say that he can't assert the claim in the first place because he's a former president.

[zanana1]

18. Now that makes sense.

I must admit I'm still a bit confused, but that's clearing it up for me. Thanks.

[FBaggins]

27. Remaining confused is actually a good sign in this case

There are scores of academic papers arguing this very point and there obviously isn't a bunch of clear evidence to go on because it only comes up in highly politically charged situations.

The key takeaway, in this case, is that just being able to make the claim - even for a sitting president - doesn't mean that you'll win in the end. It is widely accepted that presidents need confidential communications with their advisors in order to be effective, but it's just as widely accepted that it shouldn't shield them from criminal liability, congressional oversight, etc. So each instance is to some extent a new argument in that clash that depends very much on the specifics.

I haven't seen the specifics driving your question... but my guess is that Trump doesn't expect to win the claim. He's satisfied that losing it will take a loooong time, and that's enough of a goal to justify the attempt.

[StarfishSaver]

28. You're right. I stand corrected

[FBaggins]

32. It's still an interesting question for "moot" analysis

("Class act" points of course)

Lawfare took it up a few months ago. The context of a post-term impeachment trial obviously makes for a relevant difference, but it's still an interesting read.

If Trump attempts to assert executive privilege in the coming impeachment trial and Biden refuses to back it, it would be the first time, to my knowledge, that a former president has attempted to assert executive privilege against Congress contrary to the wishes of the current president. Nothing in GSA or any other judicial decision compels a particular result when such a clash exists. Nor are there relevant congressional precedents.

https://www.lawfareblog.com/can-former-president-assert-executive-privilege-impeachment-trial

Since then, I'm pretty sure that DOJ has attempted to preemptively state the "contrary to the wishes of the current president" argument for former employees. But I don't know where that goes from here.

[StarfishSaver]

33. Indeed

I also think that a sitting administration's refusal to defend or support a former president's assertion of executive privilege would carry substantial weight, as likely occurred in the Nixon case you cited (the Court expressly noted that neither the Ford nor Carter administrations supported Nixon's executive privilege claim).

[MissMillie]

11. He can't, but it has nothing to do with whether or not he's in office

The privilege is to protect the government, not the individual.

[Hassin Bin Sober]

31. Actually, in the case of Executive Privilege, it does kind of protect the individual.

The ultimate decision made is obviously our business but the courts have afforded a certain amount of “privacy” in the deliberations made with close advisors.

[ananda]

13. It's not that he still claims it, it's that he expects it to be honored.

It shouldn't be.

[dem4decades]

16. He also claims to be the least racist person.

[Midnight Writer]

17. He will claim anything, anytime, if he thinks it works to his advantage.

He is a giant sack o' shite.

[LetMyPeopleVote]

19. You are correct

[lagomorph777]

21. He can upgrade his ticket to first class and get free drinks.

Is that what you mean?

[Hotler]

24. Why is he still a free man. Where the f--k is the DOJ.

[Ace Rothstein]

25. He can claim it but his claim should be ignored.

[CrispyQ]

29. Instead of challenging "a sitting president can't be indicted," like what should be done,

I worry we will add "a past president can't be indicted," too.