Former President Donald Trump has been granted the opportunity to throw a wrench into the progress of the Justice Department’s investigation into his wrongful squirreling of classified documents and other public-owned documents at Mar-a-Lago. Earlier this month, his eleventh-hour appointee to the federal bench, Judge Aileen Cannon, indulged his most expansive claim, allowing Trump to assert that “executive privilege” could possibly apply to thousands of documents wrongfully held at Mar-a-Lago and appointing a special master to screen the documents before federal criminal investigators may have access to them. On Thursday, Cannon declined to stay that ruling as it pertains even to documents marked classified, over which there is clearly no basis for Trump to assert that his executive privilege trumps that of the current administration. In so doing, Cannon reaffirmed her unprecedented ruling that the “special master” is to screen those documents for executive privilege. She simultaneously continued to block the government from using the documents in the pending criminal investigation and rejected the Justice Department’s request that she require her special master to act expeditiously. This attempted expansion of executive privilege stretches the doctrine to its absolute limit. At the same time, even in its more modest form, the Supreme Court’s recognition of executive privilege in U.S. v. Nixon—a case I argued and in which Nixon’s claims of executive privilege over White House tapes failed—has proven to be an utter disaster for democracy without this possible gross expansion.
As just one example, Trump and his various White House aides and associates, including former Chief of Staff Mark Meadows and former advisor Stephen Bannon, similarly tried to hide behind claims of “executive privilege” in an effort to stymie the investigation of the House Select Committee probing the January 6 assault on the Capitol.
As these latest uses of this relatively new privilege powerfully illustrate, executive privilege comes at a huge cost to our governmental institutions searching for the truth. It is time to revisit the underpinning of executive privilege and to recognize that it rests on a false premise—that it is supposedly necessary to protect confidential White House communications in order to assure candor in advising the president. Decades of experience have shown that this notion was and is misguided.
Nearly fifty years ago, as the counsel to the Watergate special prosecutor, I argued that the Supreme Court should reject President Richard Nixon’s claim that he could invoke “executive privilege” to shield Oval Office tape recordings from a subpoena demanding their production for use in prosecuting his aides in the Watergate coverup trial. The court had never recognized such a privilege, and we tried to convince the justices that it would be a big mistake to create such a barrier to the search for truth.
Nevertheless, the court’s Nixon decision reached a compromised unanimous decision that declared the existence of such a privilege, but granted us access to the tapes, allowing the courts to overrule its exercise in particular circumstances. In a short-sighted, reflexive reaction, the decision was widely celebrated at the time, because it upheld the particular order requiring Nixon to turn over specified White House tapes, including the infamous “smoking gun” tape. That tape recorded Nixon’s own orchestration of the coverup conspiracy within a few days after burglars commissioned by his reelection campaign broke into the Democratic National Committee headquarters at the Watergate office complex. Recognizing that impeachment and removal from office would become inevitable, Nixon was forced to resign two weeks later.
But the Supreme Court’s decision has been the cause of enormous mischief since then.
Nixon had reserved the option to ignore any decision by the Supreme Court that was not “definitive.” It my closing argument, I asked the court to render a “definitive” ruling against Nixon. We now know—ironically, from access to the justices’ own internal papers—that the definitive, unanimous decision was crafted as a compromise. In return for a ruling that would allow enforcement of the particular subpoena directed at Nixon’s tapes, the justices agreed to recognize executive privilege for the first time and to treat it as constitutionally based. The rationale for that constitutional conclusion was dubious at the time, and no longer makes any practical sense.
The court reasoned:
A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.
Three years later, the court concluded that, even after leaving office, Nixon could invoke executive privilege to shield his White House papers from access without his consent, a ruling that former president Donald Trump is invoking to keep the House Select Committee investigating the January 6 insurrection from obtaining materials related to those events and also using to try to block the Mar-a-Lago probe from moving forward. His former aides and allies are also relying on Trump’s claim to resist testifying about the events leading up the January 6 turmoil and the day’s events. In the 1977 case, Nixon v. General Services Administration, the court reaffirmed and broadened the original Nixon rationale for recognizing a president’s special privilege to block access to hard information about official decision-making:
Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President’s tenure.
That rationale may sound plausible, but history has shown that it is naïve and unrealistic. Even before the Nixon affair, presidents and their advisors had no assurance that their internal discussions would remain confidential for long. Diaries and reflections by most former presidents and their close advisors have appeared in print for generations, both before the Nixon decision and thereafter. Presidential autobiographies discussing their administrations’ decision-making process date back to at least Martin van Buren and James Buchanan in the mid-nineteenth century
In the past 50 years, entire bookstores can be stocked just by “tell-all” books published by former White House insiders or with their active cooperation or anonymously sourced leaks. Bob Woodward of the Washington Post has developed a personal cottage industry with such reporting (beginning, of course, with Watergate itself). Some of the latest revelations in the bibliographic torrent are by Jonathan Karl of ABC News and—with disingenuous irony—by Meadows, who is invoking executive privilege to avoid testifying about the same events that he discusses in the insider’s book that he is hawking. As these latest volumes reveal, the undeniable prospect that internal conversations will soon become public has not discouraged White House aides from offering candid—and, during the Trump years, outlandish and seditious—advice to the president.
There is simply no reason to believe that the absence of privilege to shield presidential communications from official inquiry, such as by congressional committees, would dampen the creativity or candor of advice offered to the president. Instead, the privilege has the perverse consequence of depriving public authorities of reliable and accurate information, while oceans of private disclosures about what supposedly was said and by whom threaten to drown any reliable evaluation of presidential decision-making.
The Nixon decision has had the foreseeable consequence of strengthening the hand of every subsequent president in resisting calls for disclosure of White House communications. Most significantly, it was the basis for Trump to frustrate efforts by the House of Representatives to secure vital evidence from the White House in the two impeachments. Moreover, it is providing the predicate for formal and informal Trump advisors such as Bannon and Meadows to refuse to cooperate with the House select committee investigating the January 6 insurrection and for Trump himself to object to disclosure of materials that President Biden is willing to release to the committee (as well as the latest Mar-a-Lago roadblock).
Recognizing the importance of getting at the truth surrounding the January 6 insurrection, President Biden decided to “waive” executive privilege in order to facilitate the House committee’s access to reliable, contemporary evidence. Nevertheless, under Supreme Court precedent, the former president is said to have standing to assert this privilege independently, despite the incumbent’s determination that the national interest favors disclosure. Trump’s assertion of executive privilege to block release of his papers relating to the January 6 events led the U.S. Court of Appeals for the District of Columbia Circuit to stay temporarily a district court’s recent order giving preference to Biden’s willingness to waive executive privilege despite Trump’s insistence on the privilege, while the Supreme Court evaluates the clash of presidents.
Inevitably, the request to the Supreme Court for further review adds further delay as the country approaches the 2022 congressional election. In a Supreme Court composed of a majority of conservative justices who support a broad view of presidential power—including two alumni (Chief Justice John Roberts and Justice Brett Kavanagh) of the White House counsel’s office—it is by no means clear that the majority will rebuff’s Trump’s claim.
Indeed, when in January the Supreme Court refused to block the D.C. Circuit’s decision eventually allowing the January 6 Committee to have access to Trump’s presidential records, despite his claim of executive privilege, the court explained that it was doing so only because the lower court has found that access was allowable under the Nixon standards, even if Trump had still been president. Justice Clarence Thomas indicated that he would have upheld Trump’s privilege claim, keeping the documents away from the Committees. Not surprisingly, Justice Brett Kavanagh explicitly endorsed the fallacious Nixon reasoning that “[b]y protecting the confidentiality of those internal communications, the Presidential communications privilege facilitates candid advice and deliberations, and it leads to more informed and better Presidential decisionmaking.”
Wrangling over Trump’s right to claim executive privilege over the thousands of documents that he shipped off to Mar-a-Lago already has delayed the Justice Department’s conduct of an important criminal investigation. His opportunity to press this dubious privilege through the appellate courts gives him an unwarranted weapon for staving off the day of judgment.
Ultimately, the problem is with executive privilege itself. The privilege comes with great cost in concealing information about the most important actions of the president. By contrast, because it is fatuous to believe that anyone involved in presidential decision-making really expects indefinite secrecy, it provides no real benefit in enhancing the quality of presidential advice.
It is time to recognize that, if there ever was a plausible basis for the decision to recognize the existence of executive privilege, that rationale has evaporated. The past five decades of experience have shown that no president and no advisor realistically can expect confidentiality, just opportunistic and selective leaking and characterizations. Therefore, under the wise and prudent principle of jurisprudence that “when the reason for a law ceases, the law itself ceases” (cessante ratione legis cessat ipsa lex), the Supreme Court—or at least some thoughtful justices arguing in dissent—should begin the process of dismantling the misguided Nixon decision. To set the stage for forcing such a reexamination of this obstructive privilege, the Justice Department, congressional committees, including the January 6 Select Committee, and state prosecutors should begin to challenge the very constitutional underpinning of claims of executive privilege that frustrate uncovering the truth about public corruption and abuse of power.
“The public has the right to every person’s evidence.” That includes presidents, ex-presidents, and their confederates. Full stop.