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Trump made extraordinarily broad claims of executive privilege while in office. Acting on Trump’s orders, not only members of Trump’s White House staff, but members of his campaign team and even low level workers at agencies whose conversations were many stages removed from Trump refused to provide testimony to Congress. On multiple occasions, members of the executive branch under Trump refused to provide information to Congress on the basis that Trump might, at some point in the future, decide that the information was privileged. This included information that had been, in the past, regularly provided to Congress.
When the House Select Committee issued a request for both documents and testimony, Trump attempted yet another expansion of privilege, claiming that, as a past executive, he still holds the ability to restrict access to communications he conducted. That includes communications with White House staff, members of the Justice Department, campaign workers, outside advisers … everyone. In addition, multiple members of Trump’s staff or campaign, including former chief of staff Mark Meadows and self-described “dirty trickster” Roger Stone, have cited Trump’s claim in refusing to testify to the committee.
In recent cases where there were investigations of actions taken under a former president’s authority—such as Iran-Contra under Reagan, or the documents that proceeded the 9/11 attacks under both Bill Clinton and George W. Bush—no claims of privilege have been raised.
Both the district and appeals court made it clear that, as the sitting executive, only President Joe Biden determines what documents enjoy privileged protection. And, with both Biden and the committee having determined that these documents are vital to determining the truth about events on Jan. 6, Trump has no authority to block their release.
There is the possibility that the Supreme Court will simply refuse to take up the case. However, it seems likely that the Court’s conservative majority may want an opportunity to redefine executive privilege in a way that benefits Trump. The court could agree with Trump outright, or could rule that the request from the select committee is “too broad,” or provide a basis for Trump to return to a lower court and restart his appeal process.
Even though the Supreme Court set definite limits over the use of executive privilege during Watergate, the evident lack of concern about precedent by the current Court may mean this is a time where those rulings get revised. Or obliterated.
A likely outcome may be one similar to that of when Trump sought to refuse Congress access to his tax documents. Trump lost that case at the district court, before a single judge at the appeals court, before the full appeals court, and before the Supreme Court. However, a year and a half after losing that case at the top court, the documents are still not available to Congress.
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