TPM’s Josh Kovensky analyses the case the Supremes are going to hear today determining whether presidents can claim executive privilege to cover up coup planning:
Former President Trump’s lawsuit to block the Jan. 6 Committee’s probe gets a hearing Thursday, and the stakes are high.
The case could close off one of the last avenues of accountability for the former president and his actions in subverting the 2020 election.
But the lawsuit could go further than shielding Trump. It could further neuter Congress in its oversight role, while potentially strengthening the ability of former presidents to declare that swaths of records generated during their time in office remain off-limits from investigators.
“The overriding interest is that the public has a need to know certain information, particularly in cases like criminal matters and information surrounding the January 6 Congressional investigations,” UCLA Law professor Jon Michaels told TPM.
Trump wants to bring that to an end.
In the suit, Trump has raised broad claims of executive privilege, the doctrine which protects presidential records in order to protect executive decision-making, the thinking being that the president and his advisers can be more candid knowing that the subject of their discussions will largely be shielded from public view.
Trump broke with precedent by asserting executive privilege as a former holder of the office in an effort to the National Archives from responding to a document request from Congress. It’s a claim that makes constitutional law professors laugh, but also one that, if upheld to any extent, would shut off a big avenues of accountability for former presidents.
Trump’s Case
In his lawsuit, Trump is asked a D.C. federal judge to take a few actions that would block the probe: declare the subpoena invalid, stop the National Archives from responding to the subpoena, and then, finally, to force the National Archives to obey Trump when he says that certain documents are covered by executive privilege.
“Executive privilege must be defended!” Trump said in an August statement.
Trump argued that as a former president who generated the records while in office, he could assert that the subpoenaed documents were subject to his privilege. Courts have traditionally said that the privilege resides more with the office, and its current occupant – in this case, Joe Biden, who has been declining to say that records subject to the committee’s request are privileged.
The demand goes to the question of whether former presidents – and not sitting presidents – can assert executive privilege. There is very limited law in the area, and most of it is governed by the 1977 Nixon v. Administrator of General Services case, which held that the privilege largely belongs to the executive branch, with former presidents having limited rights to assert the privilege so long as it comes in the context of a specific demand for information, former Office of Legal Counsel Attorney-Adviser and University of Kentucky law professor Jonathan Shaub said.
“The privilege is on behalf of the country – you have to say that turning over the information would damage the public interest,” Shaub told TPM. “The president in asserting the interest is speaking on behalf of the republic. Saying a former president is speaking on behalf of the republic makes no sense.”
Trump, in the lawsuit, says that Biden made a mistake in not asserting executive privilege.
But he mixes that argument with two other claims: that Congress’ subpoena itself is too broad to pass muster under the Constitution, and that it lacks a legislative purpose – a claim he used to stonewall congressional investigations while in office.
“Because the Committee’s requests seek to expose confidential and privileged information while lacking ‘a legitimate legislative purpose,’ this Court has the power to declare the requests invalid and to enjoin their enforcement,” Trump’s lawsuit reads.
The stakes
That sets up Trump’s claim: that Congress should not be allowed to investigate him, and that anything he asserts as privileged should be off-limits.
If Trump succeeds, it could short-circuit Congress’s attempt at holding him accountable for the Jan. 6 Capitol insurrection, while also giving former presidents broader powers to assert that documents created during their time in office are off-limits to investigators.
Jessica Bulman-Pozen, director of the Center for Constitutional Governance at Columbia Law School, said that the two dissents in the Nixon case, which still governs the question here, presented other ways to think about the options. Under the dissent written by Justice William Rehnquist, the former president would have been fully able to assert executive privilege over documents created during his time in office. The privilege resided with the person, not the office.
“The dissent said it’s the person – so the former president can claim it,” she told TPM.
A decision along those lines could block not only the current investigation, but any other future attempt at investigating former presidents for conduct taken while in office.
Greg Lipper, a D.C. criminal and constitutional lawyer, said the Supreme Court could side with Trump on his complaints about the subpoena without ever even touching executive privilege.
“You could see five or six justices say, the Democrats are not legislating, they’re trying to conduct a quasi-criminal investigation,” Lipper said.
That would have a limited effect on the longer-term doctrine of executive privilege, but it would almost certainly short-circuit Congress’ Jan. 6 probe.
Bulman-Pozen told TPM that “even if the court were to accept a stronger version of former presidential executive privilege, I don’t imagine that it would cut out that sense of the political back and forth,” adding that she thought it unlikely that the case would make it that far.
Judges prefer to have these kinds of disputes decided outside of the courtroom – a difficulty in this case, where litigation appears to have been one of the first options.
Shaub, the former OLC official, pointed out that because there are so few court decisions in the area of executive privilege, that could both give the courts time to drag it out, but would also make anything the Supreme Court says about it have a more outsized effect.
“Because there is so little law, and its such a novel situation, you can see them dragging it out, the courts having to wrestle with it in order to resolve it,” he said, adding that “there is very little chance that this case will create a more robust precedent” for former presidents.
Michaels, the UCLA professor, argued that the tussle over executive privilege could lead to a slippery slope situation where administrations routinely release records from their predecessors as a way of humiliating them.
He added that part of the issue was the courts – it’s very difficult to predict what a stacked judiciary will do.
“That what makes this such a perilous moment – that the courts are highly politicized and highly partisan,” he said. “Are they making good decisions and prudent decisions or decisions in partisan interest?”
I will be shocked if they don’t protect Trump but I guess you never know. I’ve wondered if these conservative partisan with lifetime appointments might just think damaging Trump is in the best interest of the party. But I doubt it.
Update — Looks like there might be teeny problem:
It was a month after the 2020 presidential election, and Bernard Kerik was starting to panic. The former New York City police chief and his friend Rudolph W. Giuliani were shelling out thousands of dollars for hotel rooms and travel in their effort to find evidence of voting fraud and persuade state legislators to overturn Joe Biden’s victory.
Yet President Donald Trump’s campaign had turned down Kerik’s request for a campaign credit card. The bills were piling up. “How do I know I’m gonna get my money back?” Kerik remembers thinking to himself at the time, according to a recent interview he did with The Washington Post.
The bills went unpaid until after Fox News personality Jeanine Pirro went to bat on their behalf, according to a Republican official, who like some others interviewed for this article spoke on the condition of anonymity to discuss private conversations. Soon after, the campaign cut Kerik a check — with Trump’s approval, according to a former senior campaign official.
That move, in mid-December, smoothed the way for what would eventually be more than $225,000 in campaign payments to firms owned by Kerik and Giuliani — including more than $50,000 for rooms and suites at the posh Willard hotel in Washington that served as a “command center” for efforts to deny Biden the presidency in the days leading up to the attack on the Capitol on Jan. 6.
The fact that campaign funds were used to finance efforts to subvert Biden’s victory could complicate the former president’s ongoing attempt to use claims of executive privilege to shield documents and testimony from the congressional committee investigating Jan. 6, according to some legal scholars.
The congressional panel has made sweeping requests to the archivist of the United States for papers from the Trump White House, including for all documents stretching back to April 2020 that relate to efforts to challenge the results of the election or delay the counting of electoral college votes.
The requests specifically name dozens of people, including Kerik, Giuliani and others who were present in the Willard command center, such as former White House strategic adviser Stephen K. Bannon and legal scholar John Eastman. Eastman wrote two memos laying out legal arguments for Vice President Mike Pence to either reject Biden’s electoral votes on Jan. 6 or delay certifying the results so that states could conduct further investigations.
Trump has asked a federal court to block the release of the documents, claiming that they are protected by executive privilege. And Bannon, facing a subpoena from the committee, has cited Trump’s executive privilege claims as a reason for his refusal to comply.
The use of campaign funds “further undermines a wildly broad assertion of executive privilege” by Trump, said Richard Ben-Veniste, a former Watergate prosecutor. “Executive privilege is typically limited to the protection of communications involving a president’s official duties — not to those relating to personal or political campaign matters,” Ben-Veniste said.