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

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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

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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.

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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.