October 24, 2021

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Trump is claiming executive privilege to prevent Biden from releasing documents. Trump will lose

Executive privilege is not a term found in the Constitution. The extent to which the executive can hold secrets, and the actions that the Congress can take to reveal them, is a balance that has always been maintained through a battle of wills occasionally moderated by the Supreme Court.

There have always been instances in which discussions in the White House were held in a high degree of secrecy, but for the most part legal protections extended only to things such as military plans or diplomatic communications that could be construed as matters of national security. Going back to disputes between Aaron Burr and Thomas Jefferson, the Supreme Court (or to be more accurate, John Marshall) ruled that presidents have no particular protections or privileges attached to their private discussions. A quarter of a century later, Andrew Jackson refused to hand over any information to the Senate … but Jackson was an authoritarian jackass whose attitude toward the courts and law shouldn’t be taken as precedent for anyone. Somewhere in the middle of those two positions is the bounds of executive privilege. 

Though there is a lengthy list of refusals to produce information by the executive branch, the first broad application of such privilege didn’t come until Dwight Eisenhower cited executive privilege in refusing to provide information from the Defense Department during the Army-McCarthy hearings. Eisenhower’s reasoning might be fully justifiable, and his opponent wholly execrable, but it was in this exchange that the idea of executive privilege as an appropriate tool for protecting “candid advice,” rather than matters of vital national interest, originated. Eisenhower also extended the idea of privilege beyond direct communications with the executive to cover such discussions among advisers. 

Richard Nixon took that opening and ran for the end zone. Post-Nixon, Republicans have really liked them some executive privilege. Like … a lot. Ford claimed it. The Bushes, father and son, worked it heavily. And if Donald Trump’s claim that agencies can deny requests from the Congress while waiting to see if he wants to declare privilege seemed like something new, it wasn’t. Ronald Reagan went there first. Reagan’s idea that everything should be assumed to be privileged until he said otherwise flipped the whole concept on its head. It has stayed flipped.

Democrats haven’t been immune to the executive privilege itch. Barack Obama claimed executive privilege when the Republican-led House insisted that then-Attorney General Eric Holder turn over documents about an ongoing investigation or face perjury charges. Bill Clinton claimed privilege over documents about his inappropriate White House affair … and lost that claim in court.

Over the last 50 years, the idea of executive privilege has become so ingrained that it’s often simply assumed that any exchange between White House advisers, or even officials at regulatory agencies, is shrouded by the potential of privilege being exerted. Which has made executive privilege the enemy of transparency in a way that few (except perhaps Jackson, Nixon, and Trump) would appreciate.

But none of this—zip, zero, nada—will avail Trump now. Because, as Raskin said, executive privilege is something for people who are still in office. People who are out of office are protected by something else, something called the Presidential Records Act. And how that applies is up to the current resident of 1600 Pennsylvania Avenue. 

The first thing that Act does is make it clear that all records of the president and vice president are public data. The next thing it does is make the incumbent president the custodian of that information, and it gives the incumbent president some very broad powers.

The president can destroy records

If information is found to “no longer have administrative, historical, informational, or evidentiary value” then the president can have those records chucked. However, there is a catch. First this proposal has to run past the National Archives. Records can only be disposed on a written request from the president, and with a written approval from the archivist.

The President can restrict access to records

The president can determine that there is a compelling national interest to keep records under wraps for up to 12 years. However, information is open to selected Freedom of Information requests after five years. Again, all of this happens in coordination with the National Archives.

The president can take full control of the records

For as long as the president is in office, records can be essentially taken away from the Archives and held by the White House, meaning that anyone who wants them has to request or subpoena them directly from the president.

The president can make the records fully public

The records can be turned over to the House or Senate, or to the courts as part of legal proceedings. They can also be cleared for release on any request to the National Archives.

And it’s that last thing that’s likely to happen in the case of the records that are currently on President Biden’s desk. Two collections of Trump documents that are part of the extensive request from the Select Committee have now been turned over by the National Archives to the White House. These documents may contain phone records, schedules, meeting notes, and more for Trump, Trump’s adult children, Melania Trump, members of Trump’s legal team like Rudy Giuliani and Sidney Powell, and records from advisers like Steve Bannon and Roger Stone. The National Archives have reportedly turned over hundreds of pages of information.

The White House is looking at those records to see if there is some reason why they shouldn’t be provided (for example, discussions of a military or diplomatic nature). However, Biden has already made it clear that he values transparency and plans to “err on the side of disclosure.” So Trump should not be expecting any protection on that front.

Despite all this, there’s little doubt that Trump will try to intervene in the release of these documents, and there might be some tiny spark of hope in the land of all you can eat shrimp. 

That spark goes back once again to Joseph McCarthy, the same McCarthy that Eisenhower used executive privilege to ignore. In 1948, the House Committee on Un-American Activities subpoenaed records “concerning the loyalty” of the director of the National Bureau of Standards. Truman responded by blocking all access to so-called “loyalty files” and held a press conference making clear he would not comply with any such request. For the next four years, Truman sparred with the Un-American Activities Committee and with the follow-up hearings. 

But once Truman was out of office, they tried again, seeking to make Truman testify himself. He refused the subpoena, and the committee allowed the matter to drop rather than fight the issue out in court, which could have generated a clear definition of what protection, if any, is provided to a former executive.

That Trump’s legal position could ultimately tie back to McCarthyism … seems entirely appropriate. But he shouldn’t get his hopes up.

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