WASHINGTON — Two high-profile criminal investigations involving Donald Trump are converging on a single, highly consequential question: How much residual executive privilege can a former president invoke after leaving office?
As the Justice Department investigates Trump’s attempt to overturn the 2020 election and his retention of sensitive documents at his Florida residence, his legal team has repeatedly claimed that he has retained power to keep information secret, allowing him to block prosecutors from obtaining evidence about his confidential Oval Office communications.
President Joe Biden is not backing Trump’s attempt to use that power, and many legal scholars and the Justice Department have argued that he is stretching the narrow executive privilege rights the Supreme Court has said former presidents may invoke. But there are few definitive legal guideposts in this area, and the fights could have significant ramifications.
In the short term, the disputes could determine whether Trump is able to use the slow pace of litigation to delay or impede the inquiries. They could also establish new precedents clarifying executive secrecy powers in ways that will shape unforeseen clashes involving future presidents and ex-presidents.
“This is tricky stuff,” said Mark J. Rozell, a George Mason University professor and author of “Executive Privilege: Presidential Power, Secrecy and Accountability.” “That gets to the point where the Trump era changed things and raised these kinds of questions that before were unthinkable to us.”
Executive privilege can protect the confidentiality of internal executive branch information from disclosure. The Supreme Court first recognized it as a presidential power implied by the Constitution during the Watergate era, and only a handful of opinions have sketched out its parameters over the decades, in part because current and former presidents typically work out such issues in private.
The issue under debate in the two Trump cases, presidential communications privilege, can protect a president’s discussions with White House aides — or their interactions with one another — that relate to presidential decision-making.
Such communications may be vital evidence in determining Trump’s actions in the period between the 2020 election and the attack on the Capitol on Jan. 6, 2021.
In the Jan. 6 investigation, the Justice Department has obtained grand jury subpoenas for several former aides to Trump seeking testimony about his conversations. Trump’s lawyers have instructed them not to answer questions, based on a broad conception of his residual powers of executive privilege, even though Biden has rejected the idea as not in the best interests of the United States.
A dispute over whether those witnesses may lawfully decline to answer certain questions is now playing out before Beryl Howell, the chief judge of the U.S. District Court for the District of Columbia, behind closed doors, according to people familiar with the matter.
In the documents investigation, Trump’s lawyers have persuaded a judge he appointed in November 2020, Aileen Cannon of the Southern District of Florida, to name a special master to oversee the vetting of some 11,000 documents and records the FBI seized from his Florida residence, Mar-a-Lago, in August.
Over the Justice Department’s objections, Cannon ruled that Trump can make the case to the special master — and, ultimately, to her — that some of the documents should be withheld from investigators under executive privilege. She rejected the department’s argument that Trump was entirely foreclosed from raising the privilege in these circumstances.
But Cannon has also hedged, writing that Trump should have the ability to invoke the privilege “as an initial matter” but also suggesting that any assertion in this context might ultimately fail. For its part, the Trump legal team has shied away from explaining why material covered by executive privilege would be off-limits to investigators with the Justice Department, a component of the executive branch. “Trump’s team has not been entirely clear in asserting their executive privilege claims in their early briefs,” said Michael Stern, a former counsel with the House Permanent Select Committee on Intelligence who writes on issues involving investigations, national security and the law. “They have laid out a broad argument, but it remains to be seen how, exactly, they are going to make their case as these issues move up to appellate courts.”
The special master Cannon appointed, Judge Raymond Dearie, had instructed Trump’s lawyers to go through the seized records and distinguish between those they think are merely shielded from disclosure to people outside the executive branch, which is not unusual, and those they think the executive branch itself supposedly cannot review, a much more radical proposition. He also wanted them to explain why for each document.
Trump’s legal team chafed against articulating any such distinction. And on Thursday, Cannon relieved his lawyers from fulfilling Dearie’s request, saying in an order that they need only categorize something as subject to executive privilege in general.
On Friday night, the Justice Department asked a federal appeals court in Atlanta to expedite its request that the court overrule Cannon and shut down the special master process or at least remove consideration of executive privilege claims from it.
A panel on the court had already granted the department’s request to exempt about 100 documents marked classified from the review, while criticizing Cannon’s legal reasoning in appointing a special master. Citing that ruling, the department asked the court to hasten the remaining proceedings in the appeal, wrapping them up as early as mid-November.
“If this court agrees that the district court lacked jurisdiction, further proceedings before the special master and district court would end,” the Justice Department wrote. “Alternatively, if this court upholds the district court’s exercise of jurisdiction but concludes that plaintiff cannot assert executive privilege against the executive branch in these circumstances, as the government maintains, such a ruling would substantially narrow the special master proceedings.”
No president has ever successfully invoked executive privilege to hide information from members of the executive branch, like Justice Department investigators, as opposed to outsiders, like members of Congress. And no former president has ever successfully invoked executive privilege when the current president opposes it.
But such questions rarely arise, and the handful of cases on the topic have left many questions unresolved. Few of those rulings define the limits of the privilege in the context of a criminal investigation, and even fewer address the issue of a former president’s powers.
Trump’s power play also arguably challenges a philosophical tenet of the conservative legal movement that worked closely with his administration to appoint jurists associated with the Federalist Society, including Cannon, to the bench.
Many connected to the conservative legal movement embrace an ideology, known as the unitary executive theory, that the Constitution vests all federal executive power in a single person: the president. Allowing a private citizen who used to be in the White House to successfully invoke executive privilege against the president would fracture that control.
“There is a decent argument that it does” infringe upon the current president’s rightful powers, William Barr, the former attorney general under Trump, said in a text.From the other end of the political spectrum, Bob Bauer, a former Obama White House counsel who is now Biden’s personal lawyer, also dismissed Trump’s privilege argument.
“Trump’s legal team is facing very long odds, to say the least,” Bauer said. “But they may see strategic value in slowing things down by litigating every last strained argument. So it is more ploy than law.” The Supreme Court first said that the Constitution implicitly gives presidents some power to keep their confidential communications secret in President Richard M. Nixon’s legal fights during and after the Watergate scandal.
The purpose of executive privilege, the justices have said, is to benefit the country as a whole — not to benefit presidents as individuals. The idea is that presidents will make better decisions if they receive full and candid advice, with expectations of confidentiality keeping their advisers from feeling chilled from expressing any potentially unpopular views.
But the justices also made clear that this is not an absolute power: A “demonstrated, specific need” for information can overcome the presidency’s “generalized” need for confidentiality, as the Supreme Court wrote in 1974.
In several cases, the courts have held that executive privilege can be overridden if evidence is needed for a criminal proceeding. They include a 1974 Supreme Court ruling involving the Watergate prosecutor’s subpoena for tapes of Nixon’s Oval Office discussions, and a 1997 appeals court ruling involving a grand jury subpoena for Clinton White House notes about an official accused of improperly taking gifts.
Both cases involved an assertion of executive privilege by a sitting president. The present situation — in which Trump is no longer the president, and Biden does not support his invocation of executive privilege — adds another complexity.
One rare guidepost also comes from the post-Watergate era. After Congress enacted a law making clear that Nixon White House records belong to the public, Nixon — now out of office — challenged the law as unconstitutional. He said it violated executive privilege to allow executive branch archivists to see his materials.
Presidents Gerald R. Ford and Jimmy Carter disagreed. And in 1977, the Supreme Court ruled that while a former president retains power to assert executive privilege, the views of the incumbent officeholder should be afforded greater weight. The majority sided against Nixon and upheld the law on its face, but left the door open to later challenges about specific documents. He instead dropped the matter.
A more recent precedent arose when the House committee investigating the Jan. 6 riot subpoenaed the National Archives for Trump White House records. Trump invoked the privilege, but Biden opposed using it and said the executive branch information should be disclosed.
The Supreme Court refused to block the release, with only Justice Clarence Thomas registering a dissent. But the majority left unaddressed whether there were circumstances in which a former president’s claim of privilege could override the incumbent’s. Justice Brett Kavanaugh, in a concurring opinion, insisted that there were.
“A former president must be able to successfully invoke the presidential communications privilege for communications that occurred during his presidency, even if the current president does not support the privilege claim,” he wrote. “Concluding otherwise would eviscerate the executive privilege for presidential communications.”