Trump can't hide behind executive privilege anymore. But he's still trying

[Nevilledog]

Link to tweet

https://www.washingtonpost.com/s/outlook/2021/10/19/trump-executive-privilege-jan-6/

No paywall
https://archive.md/AN95c

On Aug. 24, the House select committee to investigate the Jan. 6 attack on the U.S. Capitol issued a request for documents, including presidential documents housed at the National Archives. President Biden declined to assert executive privilege and authorized the Archives to release the records to Congress. The Presidential Records Act of 1978 (PRA) as modified in 2014 gives the sitting president final authority over whether to assert executive privilege over presidential documents. A former president can be heard, but under the PRA, the sitting president decides.

And yet on Monday, former president Donald Trump filed a lawsuit to prevent the select committee from accessing these documents, claiming that the committee “has decided to harass President Trump” with a “vexations, illegal fishing expedition” and “impulsive egregious action against a former President and his close advisors.”

Trump never actually argued that he as former president — rather than Biden as the sitting president — should have the final say over these documents. Instead, he argued absurdly that the select committee’s request doesn’t meet the standard the Supreme Court laid out in Trump v. Mazars governing requests for the nonprivileged personal records of a sitting president — even though requested records are not personal and even though Trump is not the sitting president.

Under the Mazars standard, a subpoena for a president’s personal records must meet four elements. First, to minimize “confrontation between the branches of government,” the legislative purpose must warrant the intrusive step of demanding a president’s personal records. Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. This “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Third, the subpoena must advance a valid legislative purpose. Finally, courts should assess the burdens imposed on the president by a subpoena, particularly because they stem from a rival political branch.

*snip*

[Silent3]

1. "including presidential documents housed at the National Archives"

Unless some court has, unbeknownst to me, granted Trump immediate injunctive relief, what does it matter if Trump has filed a lawsuit to block release of such documents?

If Biden says he's okay with the release of the subpoenaed documents located in the Nation Archives, and it's legally all up to Biden and no one else, why not release them immediately? Why wait around for a possible run-out-the-clock injunction?

[onenote]

2. Answers

1. It's not up to Biden and no one else. The Supreme Court has unequivocally held that a former president has standing to assert a claim of executive privilege with respect to his/her documents. Where that claim conflicts with the position of the incumbent president, the courts are called up to resolve the matter.

2. There are specific rules and timelines, embodied in statute, governing the release of presidential records by the Archivist. President Biden can't simply ignore those rules and timelines.

[Silent3]

3. That's one fucked-up system

I'm all for due process, but not practically designed-to-be-abused process.

[onenote]

4. You probably wouldn't think that

if Trump, while president, had decided to release communications between Obama and Biden for the purpose of gaining some advantage over Biden in the 2020 election. You'd probably very much support Obama having a chance prevent that disclosure.

[onenote]

5. The analysis in the article cited by the OP is defective in certain respects

First, it claims that the 2014 Presidential Records Amendment Act of 2014 gives the sitting president final authority over whether to assert executive privilege over presidential documents. A former president can be heard, but under the PRA, the sitting president decides. In fact, under the PRA as amended, where a former president asserts executive privilege and the incumbent president does not support that claim, the archivist is directed to release the documents unless the archivist is "otherwise directed by a final court order that is not subject to appeal". Similarly, if the incumbent president supports a former president's assertion of executive privilege, the archivist is directed not to release the documents, unless the archivist is "otherwise directed by a final court order that is not subject to appeal." In short, the incumbent president does not necessarily have the "final" say as the article claims -- the statute carves out a role for the courts to have the final say.

Second, the article ignores the elephant in the room: the current Supreme Court. While she dismisses Trump's separation of powers argument and his claim that his papers are his personal property, relying on the PRA and, implicitly, the Nixon v.GSA case that upheld the PRA and rejected the separation of powers claim, she fails to acknowledge that two justices strongly dissented in that case -- Burger and Rehnquist. It is naive to think that the current conservative majority might not decide to distinguish, or even overrule Nixon v. GSA and adopt the Burger/Rehnquist position, basically invalidating the PRA.

Will that happen? I hope not. But blithely ignoring the possibility is poor legal analysis.

[Tomconroy]

6. Trump's lawsuit just got assigned to District Judge

Tanya Chutkan. Bad draw for Trump.