Several legal pundits are saying former presidents can't invoke executive privilege. That's not true

[StarfishSaver]

Last edited Fri Sep 24, 2021, 10:50 PM - Edit history (2)

The Supreme Court has explicitly held that former presidents can indeed exert executive privilege.

"It is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. 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 ...

"The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure."

---Justice Brennan, writing for the majority in Nixon v. Administrator of General Services, 433 U.S. 425 (1977) https://supreme.justia.com/cases/federal/us/433/425/#tab-opinion-1952361

It doesn't get any clearer than that.

Executive privilege can be invoked either by a current president for communications between him and his aides or for communications by former presidents during their tenure in office. Former presidents can invoke the privilege for communications during their time as president.

The current president's declination to invoke the privilege would surely carry great weight with the courts because they are responsible for the country. But a former president has a right to invoke the privilege, even if the court doesn't accept it. And it's not necessarily a sure thing that the privilege doesn't exist if the current president chooses not to invoke it.

For example, imagine if Trump and his henchmen, including various U.S. Attorneys, Republican Senators and Members of Congress had decided to really go after President Obama and subpoenaed his Chief of Staff, Cabinet Secretaries (including Hillary Clinton) and other staffers, demanding that they testify about all of their deliberations on various matters.

Surely, former President Obama could have invoked executive privilege, while the Trump White House probably would have declined to do so. I doubt any court in that situation would rule that Obama could not invoke the privilege or that those communications weren't privileged and forced Obama's staff and appointees to testify because Trump's views controlled.

[wcmagumba]

1. I guess this would be true even if the evidence is requested as part of a criminal investigation?

Pretty much gives the pres and former presidents a lifetime stay out of jail card...hmmm....

[StarfishSaver]

3. No, it doesn't.

There is a difference between a person having STANDING to bring a defense based on a privilege in court and the defense actually being accepted.

In this instance, former presidents have the RIGHT to invoke executive privilege over communications they engaged in as president. But it is up to the court to determine whether the particular communication at issue falls within the privilege's protection.

Trump, as a former president, has the standing to assert executive privilege in this case. But the communications at issue are unlikely to qualify as privileged, given a variety of factors, including the fact that they involve criminal activity unrelated to the duties of a president and they were engaged in with people who were not on his staff at the time of the communications. He also has to show that the communications are so sensitive and important that revelation of them can negatively impact the country - that's where Biden comes in. By refraining from joining Trump in the invocation of the privilege, he's essentially saying that disclosing that communication won't cause any damage and that's going to be given considerable weight since he's the person currently responsible for the well-being of the country.

I hope that makes sense - it's both complicated and also very simple and logical.

[wcmagumba]

9. Okay, thanks for a great explanation, I'm not a lawyer but it sounds as though drumphy

will not be out of the criminal indictment woods even if he claims privilege.

[StarfishSaver]

12. Glad to explain it - I know it's confusing. Even skilled lawyers are getting it wrong

In fact, I had it wrong myself. Until a few weeks ago, I also thought the privilege lapsed when a president left office. But a DUer (a non-lawyer) corrected me and pointed me to the Nixon v. Administrator case.

[PoliticAverse]

2. Executive Privilege and Former Presidents: Constitutional Principles and Current Application

Executive Privilege and Former Presidents: Constitutional Principles and Current Application
Congressional Research Service
September 20, 2021
(.pdf)
https://sgp.fas.org/crs/secrecy/LSB10642.pdf

[StarfishSaver]

6. Thanks for posting this. From your link:

[In] Nixon v. Administrator of General Services (Nixon II) ... the Supreme Court determined that the protections of the presidential communications privilege survive beyond the conclusion of the presidential administration within which they occur and may be asserted by a former President. Nixon II involved a challenge brought by former-President Nixon to the Presidential Recordings and Materials Preservation Act, a records disposition law enacted shortly after President Nixon’s resignation, and a precursor to the PRA. In upholding the law, the Court concluded that a former President may “legitimately” assert the privilege to prevent disclosure of his official records after he has left office. In reaching that conclusion, the Court reasoned that the confidentiality necessary to ensure the free exchange of ideas between the President and his advisors cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President’s tenure.

[PoliticAverse]

10. The key point I got from that document was...

As a consequence, when a former President’s privilege claim does not receive the support of the incumbent President, the strength of the claim declines.

[StarfishSaver]

11. Yes, I totally agree with that

[Bev54]

13. It also says that is is the applied in the constitutional functions of a president

I hardly think the planning and carrying out an insurrection of the government would fall under that privilege.

[StarfishSaver]

14. Yes - that's one of the reasons I think his attempt to claim executive privilege will fail

The communications he's attempting to shield were not part of his job as president.

[msongs]

4. heard to assert doesnt mean they will actually get it IMO. nt

[StarfishSaver]

7. Exactly

Two different things.

[fescuerescue]

5. I think people really under estimate how much power a former President still wields

Some of it official, but much unofficial.

[StarfishSaver]

8. Possibly

But the ability to assert Executive Privilege is not a huge power for a former president.

If the current president doesn't agree and join in the assertion, it doesn't carry much weight with the court. And if the current president DOES join in the assertion, there's probably a good reason for it and it's the current president who's wielding the power, not the former guy.

[Midnightwalk]

15. Thanks for explanation

It is annoying that this will stall the release of the information. I understand the need to allow for legitimate appeals, but delay tactics seem to work so well.

Have delay tactics always been so effective?

Edit: just saw your reply 8, but I’m still interested in your take on my question.

[pnwmom]

16. And the "heard to assert" fits with the rule that Trump has 60 days now to make this claim.

And then the courts will hear it.

[StarfishSaver]

17. Kick

[LetMyPeopleVote]

18. The current POTUS gets to make the decision on Executive Privilege

Link to tweet

[StarfishSaver]

19. Barbara McQuade is wrong.The decision is not solely up to Biden.

As I showed in my OP, the Supreme Court was unequivocal. A former president has standing (I .e. the legal right) to assert the privilege - not just to "make a recommendation" as McQuade says (she seems not to have read the Supreme Court holding).

Now, once a former president asserts the privilege, a court can treat it like a recommendation and ignore it if it likes, giving the current president's position considerably more weight. But it is just wrong for these legal pundits to keep telling the audiences that Trump has no legal right to claim executive privilege.

[LetMyPeopleVote]

20. Biden White House leans toward releasing information about Trump and Jan. 6 attack, setting off lega

You are ignoring the fact that the material being disclosed relates to a potential criminal investigation. Executive privilege does allow one to hide material that is relevant to a criminal investigation

Link to tweet

While Trump has struck a defiant tone, his options may be limited if Biden decides to hand over the information the former president says should be protected, according to several legal experts — including those who have reviewed similar requests in the past.

“The law we have is not favorable to the former president,” said Bob Bauer, who served as White House counsel under President Barack Obama. “A former president has a chance to review the materials, to raise issues of privilege and if the former and the current presidents cannot reach some agreement, to take the dispute to the courts.”

Bauer added that while an inquiry into a former president is unique, legal precedents suggest disclosure of the information Congress is seeking.

“The circumstances here — the former president acting at the time in his capacity as a candidate seeking to challenge his defeat at the polls — make this uphill battle much, much tougher,” he said.

Donald McGahn tells House panel about Trump’s bid to undermine Mueller probe

Norm Eisen, a former Obama administration official who advised the first House impeachment inquiry of Trump, said the former president’s power to assert executive privilege has weakened since he left the White House.

“The executive privilege stonewalling that Trump used while he was in office won’t work anymore,” Eisen said, noting that the current president — not the former — has the real decision-making power.

A former federal judge who worked on executive privilege issues in the Reagan White House and the George H.W. Bush Justice Department pointed out that privilege requests do not typically attempt to shield information about potential wrongdoing.

“With a few notable exceptions, the historical practice has been for Presidents to avoid asserting Executive Privilege to protect from disclosure information that suggests wrongdoing or potential wrongdoing by a President and/or his advisers,” J. Michael Luttig, a former U.S. federal judge, said in an email.

[StarfishSaver]

21. You're missing the point

There's a difference between having the legal standing to exert a claim of executive privilege and having that claim found to justify shielding a particular communication.

This is two separate issues, part of a two-step process the court has to consider .

The first question is a threshold one - whether a former president has the right to exert an executive privilege claim. That question is a general one, not related to the substance of the claim. The issue is simply whether he has a right to assert the claim.

If he does not have standing to assert the claim, it doesn't matter what the facts of the case are or what kind of communication he's trying to shield. He cannot even raise the issue of executive privilege - And if he tries, he's bounced out of court, regardless what the substance is .

But if he does have standing, he is allowed to go into court to raise the claim. At that point the court would decide whether or not the claim was a valid one, but he still has the right to assert it .

Trump has the right to assert the executive privilege claim - his position as a former president does not affect that.

Once he asserts that claim, however, it will be up to the court to decide whether or not executive privilege appropriately covers the particular communication he's trying to protect.

None of the quotes you cited contradict this.

Think of it this way. Standing determines whether or not a person is allowed to go into the courtroom. If he doesn't have standing, he's not allowed in the courtroom - the door is essentially slammed in his face before he can say a word. But if he does have standing, he's allowed to go into the courtroom and make his case - The judges will hear him out and then decide whether to rule in his favor or not.

Trump has standing to get into the courtroom. But once there, it's very unlikely the judges will rule in his favor for the reasons you cite - executive privilege cannot be used to protect criminal behavior.