The National Archives and Records Administration (NARA) and former President Donald Trump are locked in a long running dispute over records taken from the White House in January 2021. According to a NARA May 2022 letter and more recent reporting, the agency went back and forth with Trump’s lawyers about “missing Presidential records” throughout 2021 and well into 2022. In January 2022, Trump transferred 15 boxes of records from Mar-a-Lago to NARA.
It’s an exchange that may now also be relevant to Trump’s asking a federal district court in Florida to appoint a Special Master to filter out documents subject to “executive privilege.”
The May letter establishes a timeline showing how Trump and NARA have tussled over the documents and reveals the former president raised the possibility that executive privilege would block their review by law enforcement and intelligence agencies. But NARA rejected the executive privilege argument and shared the documents with the FBI. Below I discuss the statutory and constitutional framework for assessing Trump’s dispute with NARA regarding FBI access to the 15 boxes and explain why from a legal and constitutional standpoint NARA was not only justified in denying Trump’s assertion of executive privilege. It really had no choice in the matter.
Some of the documents in the 15 missing boxes were marked as Top Secret and included Sensitive Compartmented Information and Special Access Programs—which are among the nation’s most closely guarded secrets. Based on those classification levels, NARA informed the Department of Justice, which determined that it should examine them for two reasons: (1) to evaluate whether they contained evidence of criminal activity, and (2) to assess potential damage to national security stemming from how the documents were stored at Trump’s Mar-a-Lago residence before being returned to Washington. The White House counsel, acting on behalf of President Joe Biden, then made a formal request that NARA allow the FBI to inspect the contents of the boxes. On April 12, 2022, NARA provided Trump notice that it planned to provide access to the FBI, and that it could do so just a few days later.
This notice was not simply a courtesy, but a formal step required by the Presidential Records Act (PRA). Although the PRA declares that “[t]he United States shall receive and retain complete ownership, possession, and control of Presidential records,” it does not provide all executive officials with unfettered access to such records. Instead, the PRA assigns to the archivist of the United States (who heads NARA) the “responsibility for the custody, control, and preservation of, and access to” the records of each former president, and it establishes procedures pursuant to which NARA may provide access to others, including the incumbent president.
Specifically, the PRA provides that “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke,” presidential records of a former president “shall be made available … to an incumbent President if such records contain information that is needed for the conduct of the current business of the incumbent President’s office and that is not otherwise available.” It further instructs NARA to issue regulations for providing notice to a former president when materials are to be made available pursuant to this provision. Under the applicable NARA regulations, the former president is normally given 30 days advance notice, but NARA retains the discretion to adjust the period as appropriate.
Here NARA decided that the urgency of the matter made it appropriate to shorten the initial notice period considerably (to as little as six days), but upon request from Trump’s representatives (and with the acquiescence of the White House counsel) it extended that period for an additional 11 days, until April 29, 2022. At that point, Trump’s team asked in writing for additional time to review the materials in the 15 boxes for the purpose of determining whether any document therein was “subject to privilege” and consulting with the former president so he could decide whether to assert “a claim of constitutionally based privilege” to block the FBI’s access to any such documents, the letter shows. Alternatively, they informed NARA it should consider their request to be “a protective assertion of executive privilege made by counsel for the former President.”
But in the May 10 letter, NARA denied these requests. The agency pointed out that four weeks had already passed since it informed Trump of its intent to provide access to the FBI, implicitly suggesting that this was adequate time for a review of the relatively limited quantity of material at issue. In any event, NARA noted “there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where ‘such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available 44 U.S.C. § 2205(2)(B)’” (emphasis in original). It expressed strong doubt that a former president could ever successfully assert a claim of executive privilege against an executive branch agency authorized to obtain access to presidential records by the incumbent president, but it argued that in any event “[t]he question in this case is not a close one,” given that the FBI required access both for purposes of a criminal investigation and to make a damage assessment of potentially compromised classified materials. Accordingly, NARA denied both Trump’s request for a further extension of time and his “protective assertion of executive privilege.” Instead, it informed his lawyers that the FBI would be permitted to access the boxes of material as early as May 12, which (presumably not coincidentally) was exactly 30 days after NARA’s initial notice of intent to provide access.
From a legal and constitutional standpoint NARA was not only justified in denying Trump’s assertion of executive privilege, it really had no choice in the matter.
To understand why this is so, it is helpful to break down the question into three questions:
(1) Does a former president ever have the right to successfully assert executive privilege to prevent access to presidential records by the incumbent president or executive agencies acting under the incumbent’s authority?;
(2) If such a right exists, could it be successfully exercised under the current circumstances?; and
(3) Who decides the first two issues?
First, the PRA makes clear that nothing in its provisions are to be interpreted as expanding or diminishing the former president’s constitutional rights. Indeed, both the statutory language and legislative history make clear that Congress has been extremely skeptical of the notion that a former president can successfully assert executive privilege under any circumstances without the support of the incumbent president. While the executive branch has taken a different view, that argument has never extended so far as to suggest that the former president can successfully assert the privilege in opposition to the incumbent, much less that he can do so when the incumbent himself is seeking access to presidential records for purposes of carrying out the constitutional functions of the executive branch.
For example, when in the 1980s the Office of Legal Counsel issued a much criticized opinion (later rejected by the D.C. Circuit) that an incumbent president should ordinarily defer to a former president’s assertion of executive privilege with regard to the latter’s presidential records, it nonetheless explained that “this principle must yield when it conflicts with the discharge of the incumbent’s constitutional responsibilities;” thus, “if the incumbent President believes that the discharge of his constitutional duties (e.g., investigation and prosecution of alleged crimes) demands the disclosure of documents claimed by the former President to be privileged, it may be necessary for him to oppose a former President’s claim.” (emphasis added). Similarly, the author of the opinion, Assistant Attorney General Charles Cooper, when summoned to defend it before Congress, explained that “an incumbent President need not respect a former President’s claim of privilege if the incumbent feels that it would interfere with his ability to execute his legal and constitutional responsibilities as he, alone, understands and perceives them.”
Whether a former president should ever have the unilateral power to assert executive privilege over the objection of the incumbent remains an unsettled issue, as the Supreme Court recently recognized in Trump v. Thompson. As I have pointed out elsewhere, this notion is in considerable tension with OLC’s general approach to executive privilege. At least one member of the Supreme Court (Justice Kavanaugh) nevertheless believes that “[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.” In Thompson, however, Justice Kavanaugh was writing in the context of a congressional request (from the January 6th Committee) to access presidential records; it is by no means clear that he would maintain the same view where the incumbent president himself was seeking access to the records for purposes of carrying out the executive’s legal and constitutional functions.
Indeed, Kavanaugh, during his tenure in the White House counsel office, famously defended a controversial executive order on presidential records issued by President George W. Bush. That order made it extremely difficult for the public, Congress or the courts to access presidential records over the objection of a former president. However, the order explicitly provided that it did not address access by the incumbent president to those records, a fact somewhat bitterly noted by congressional critics at the time.
In short, the notion that a former president can block his successor from accessing presidential records that the incumbent believes he needs for purposes of carrying out executive functions would be the most extreme manifestation of a doubtful legal theory, and one that has no support in any legal authority to date.
Second, even if some circumstances might allow a former president to block an incumbent president from accessing the former’s records, that certainly is not the case here. The Biden administration has identified two purposes for reviewing the 15 boxes of materials. The first, law enforcement, is precisely the type of core executive function that Cooper noted would justify disregarding the former president’s claim of executive privilege. The second, conducting a damage assessment of classified materials that had been missing for over a year to determine whether remedial steps needed to be taken, is perhaps even more compelling.
Indeed, during the congressional hearings that led to the enactment of the PRA, one of the points supporters of the bill made was that incumbent presidents needed to have access to the records of their predecessors for national security purposes. For example, some PRA proponents noted that during the Kennedy administration some assurances made to the French government during the Suez crisis were only documented in records that former President Eisenhower took with him when he left office, and which only he and his family could access. One witness cited this example of the “insanity” of the prior system and urged Congress:
We cannot allow the most secret documents to be taken away every 4 years and treated like the personal property of a private citizen—the ex-President of the United States. A new President should not be required to come hat in hand, begging his predecessor to let him see vital documents relating to the national security.
Another witness, the former White House counsel to President Ford, explained that under the proposed legislation “no President can restrict a successor in office from getting continuous access to those records that the successor may need.”
Even if former President Trump has a colorable argument that the FBI does not really need access to these documents (and, to my knowledge, no such argument has been made publicly), it seems highly unlikely that any court would substitute its judgment (or the judgment of a politically unaccountable former president) for that of the incumbent president in circumstances such as these. As NARA noted in its letter, this does not appear to be a close question.
To be sure, it is possible that the 15 boxes of documents contain privileged documents which are not classified and which have no bearing on either the criminal investigation or the damage assessment. Had Trump’s representatives reviewed the materials and identified such documents, they might have had a much stronger claim that executive privilege protected those specific documents (or indeed fail to meet the statutory standard that they are needed for the conduct of current business and not available elsewhere). But it appears that Trump’s representatives did not conduct that review and no such documents have come to light. Thus, it is impossible to assess whether privilege protects any part of the 15 boxes.
Finally, longstanding executive branch doctrine makes clear that the archivist, as a subordinate executive branch official, has no authority to countermand the sitting president’s decision on whether to honor the former president’s invocation of executive privilege. Indeed, NARA regulations provide that it cannot honor the former president’s invocation of privilege unless the incumbent president affirmatively decides to support it. The only viable option for a former president to challenge an access request by the sitting president is to file suit in the United States District Court for the District of Columbia, which the PRA vests with jurisdiction “over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.”
However, Trump (who is hardly shy about filing legal actions to protect his rights, real or imagined) chose not to challenge the archivist’s decision through the manner prescribed. This suggests perhaps that his true objections are more political than legal in nature.
If the federal court in Florida grants his application for appointment of a special master, he will have the opportunity to make the case for applying executive privilege to a different set of documents—those seized by the FBI during its search of Mar-a-Lago—but will face similar obstacles to success.
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