A Former President’s Authority to Assert Executive Privilege is Incompatible with Executive Branch Doctrine

Last week the Gray Center for the Study of the Administrative State held a programentitled “Congress’s Interbranch Role: The Executive, the Court, and Dobbs.” The first panel focused on conflicts between Congress and the executive, particularly disputes over congressional access to information and executive privilege. The panel, consisting of three DOJ/OLC veterans (Professor Josh Chafetz, who was supposed to represent the congressional perspective on these issues, was unfortunately unable to make it), provided an excellent if somewhat executive-tilting overview of the issues in such disputes.

What struck me in listening was the divergence between the principles underlying standard executive branch doctrine on congressional oversight and the theory that a former president may assert executive privilege. Because the panel did not discuss executive privilege as it relates to former presidents, it is worth expounding on that divergence here.

As explained by Will Levi, who was chief of staff to Attorney General Barr in the Trump administration, the executive branch views executive privilege as consisting of four components: (1) presidential communications- communications between the president and senior staff, as well as communications between senior staff and subordinate officials (or even private citizens!) for purposes of formulating advice to the president; (2) deliberative process- predecisional communications in the departments and agencies or other lower levels of the executive branch; (3) law enforcement information (which often arises in the context of attempts to obtain access to investigative or open case files); and (4) state secrets- information related to national security and foreign policy. Levi noted that the presidential communications and deliberative process privileges were qualified privileges that could be overcome by a sufficient congressional showing of need, but he maintained that the law enforcement and state secrets privileges were “more absolute.”

It should be observed that only two of these components (presidential communications and state secrets) are relatively non-controversial. Congress has never accepted, nor has the Supreme Court ever found, that the executive branch has a constitutionally based right to withhold information from Congress on grounds of deliberative process or law enforcement information.

Even on its own terms, the executive branch theory of privilege is incompatible with its assertion by a former president. To begin with, consider the law enforcement and state secrets prongs of executive privilege. A former president lacks both the access to information and the constitutional authority to make determinations regarding these matters. The executive branch regards these prongs as “more absolute” presumably because Congress and the courts lack the capacity to second guess the sitting president’s determinations regarding national security or law enforcement matters. If so, it would seem self-evident that the former president’s judgment cannot prevail over the incumbent’s on these issues.

With respect to presidential communications and deliberative process, a former president does have the capacity to establish that the prerequisites for asserting these privileges exist, but his view on whether the public interest warrants the assertion of the privilege still should not prevail over that of the sitting president. As another panelist, Steven Bradbury (the former head of OLC), observed, the executive branch traces the doctrine of executive privilege back to the presidency of George Washington. I explain here that Washington’s cabinet maintained the president should disclose papers demanded by Congress unless disclosure would “endanger the public.” This decision requires a discretionary weighing of constitutional obligations and public interests that only the sitting president can perform.

Bradbury stressed that the decision to invoke executive privilege is one that can only be made by the president personally and “that’s a decision that is made on a considered basis with a lot of input from the Justice Department on whether it’s appropriate and justified in a given case given the needs of Congress and the confidentiality interests of the executive branch.” Furthermore, because the president has a strong political need for Congress’s cooperation (e.g., to obtain funding for agencies and his legislative priorities), he is incentivized to provide Congress the information it requires.

By contrast, a former president will likely have no access to advice from the Department of Justice or other executive branch lawyers, and he would have little reason to seek or rely upon such advice even if it were available. He also lacks the incentive to consider the congressional need for information or to reach an accommodation that satisfies congressional interests.

As the third panelist, Hashim Mooppan (the former head of DOJ’s appellate division), emphasized, the accommodations process is central to the executive branch’s understanding of how congressional oversight should work. Both sides have strong incentives to compromise, thereby avoiding the need for enforcement measures (e.g., criminal contempt, inherent contempt, or civil lawsuit) which threaten interbranch comity and implicate separation of powers concerns. Again, however, a former president has little incentive to reach an accommodation with Congress, and it is hard to see why he should be permitted to disrupt an accommodation that has already been reached. See Trump v. Thompson, 20 F.4th10, 32-33 (D.C. Cir. 2021) (“A court would be hard-pressed under these circumstances to tell the President that he has miscalculated the interests of the United States, and to start an interbranch conflict that the President and Congress have averted.”).

Assertion of executive privilege by former presidents has arisen most often in connection with presidential records. In connection with the January 6 committee investigation, however, it has been argued that former President Trump could also assert executive privilege over testimony by his former aides. Logically, the theory that a former president can assert executive privilege would seem to apply to any protected information from his administration, regardless of whether that information is contained in presidential records, agency records, or the minds of current or former government officials. Cf. Trump v. Thompson, 595 U.S. __ (2022) (Statement of Justice Kavanaugh) (“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 claim.”).

Justice Kavanaugh’s statement suggests that the former president has a degree of unilateral control over at least presidential communications from his own administration. Does this mean that Trump could instruct his former aides not to provide information to the January 6 committee, even if President Biden has determined that the public interest requires disclosure? If so, could Trump also instruct current government officials not to testify or produce agency records even if Biden thinks otherwise? Recognizing such a power would seem to be in considerable tension with the concept of a unitary executive.

This problem is only exacerbated if the former president’s power to assert privilege extends beyond presidential communications. Under the executive order drafted and defended by Kavanaugh as a lawyer in the George W. Bush White House counsel’s office, “constitutionally based privileges” that may be asserted by a former president include not only presidential communications but state secrets and deliberative process, as well as the attorney-client and attorney work product privileges (though not, interestingly, the law enforcement privilege). Recognizing the former president’s right to assert these privileges (particularly if that right sweeps more broadly than just presidential records) would compromise the incumbent’s control of a broad swath of executive information relating to the prior administration. Imagine, for example, if the sitting president needed the permission of his immediate predecessor to access, use or disclose any national security information from the prior administration. Such a result would seem flatly inconsistent with any standard OLC account of executive power.

Finally, as I have discussed before, it is hard to reconcile the executive branch’s theory of Article III standing with the notion that a former president may sue to block disclosure to Congress (or others) of information he deems protected by executive privilege. As Mooppan explained, the executive maintains that Congress cannot sue to enforce a subpoena for executive information because such a suit does not involve “the type of injury that lets you get into federal court,” i.e., injuries that involve the rights of individuals and private parties. In the Mazars litigation, DOJ took the position that Trump had standing to sue to block a congressional subpoena because he was suing in his personal capacity to protect against disclosure of private financial information, but this theory clearly does not work when a former president sues in his ”official capacity” to vindicate a government privilege against disclosure to Congress, as Trump did when he sought to prevent the National Archives from complying with the January 6 committee request for presidential records relevant to its investigation.

In denying Trump’s request to block the disclosure of records to the January 6 committee, the Supreme Court cited “unprecedented” questions and “serious and substantial concerns” regarding “whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege.” Before these questions reach the Court, it would behoove OLC and its ilk to give further thought to how broader executive branch doctrine bears upon these questions.

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