Editor’s note: This is an updated version of an article first published on November 10th 2021.
Soon after the FBI seized classified documents from Mar-a-Lago, Donald Trump’s Florida home and resort, the former president’s legal team asked a federal judge to appoint an independent reviewer known as a “special master” to review the seized materials for those protected by executive privilege. On August 30th the Justice Department filed a response to Mr Trump, arguing that he had neither previously asserted executive privilege nor declassified the documents stored haphazardly at his home. That federal judge, whom Mr Trump appointed, is due to hear arguments from both sides on September 1st. What is executive privilege, and are Mr Trump’s claims likely to succeed?
Broadly, executive privilege is a doctrine that permits the president and executive-branch officials to shield some of their records from the other two branches of government (Congress and the courts). Typically, the executive branch asserts it in response to a request from another branch of government. It is not mentioned in the constitution, though courts have recognised that it exists, and derives from separation of powers: if Congress or the courts could demand any executive-branch communication at any time, the executive would no longer be fundamentally equal in power to the other two.
Precisely what sorts of communication can be withheld has long been subject to debate: unsurprisingly, the executive has tended to take an expansive view of privilege, which the other two branches have contested. Often these arguments were resolved through negotiation rather than legal wrangling, because the parties involved understood executive-privilege questions as more political than legal.
But not always. The Supreme Court weighed in nearly 50 years ago, in United States v Nixon, when then-President Richard Nixon asserted that privilege was outside of judicial review, meaning courts could not weigh in. The court disagreed, finding that it extends to some communications related to national security, but that privilege is neither absolute nor beyond review; instead, it must be balanced against the legitimate interests and claims of the other branches.
Subsequent federal courts have found that executive privilege applies to “direct decision-making by the president,” but that it can be overcome by showing that “the subpoenaed materials contain important evidence…not available with due diligence elsewhere,” and that a privilege claim cannot provide absolute immunity from congressional subpoenas (such as those issued by the January 6th Select Committee).
Even by the historically maximal approaches of previous presidents, the assertions of privilege emanating from Mr Trump and his circle are extraordinary, and not always plausible. Steve Bannon, a former adviser to Mr Trump, said his ex-boss’s claims of privilege shielded him from having to honour a congressional subpoena. A court disagreed, and in July convicted him of contempt. Executive-privilege claims probably could not shield Mr Trump’s associates from testifying in a criminal probe. And even the Supreme Court, with its six-justice conservative majority made possible by three Trump appointees, has found his executive-privilege claims too broad.
None of this means that the judge at the hearing on September 1st will side with the Justice Department; in fact, she has already said she was inclined to agree to Mr Trump’s team’s request for a special master. But that, in turn, does not mean either she or the special master will agree with Mr Trump’s broad (and apparently novel) executive-privilege claims. It is unclear whether a former president can successfully assert executive privilege without the incumbent’s support, especially over documents essential to executive-branch functions. Approving Mr Trump’s claims would mean that presidents could leave office with whatever classified documents they wished, store them however they like and deny the current office-holder access, which would play havoc with (among other things) national security. Setting such a precedent may not matter much to Mr Trump, but it matters immensely to the rest of the world. ■