What is executive privilege? | The Economist
TTHREE MONTHS AGO, the House special committee investigating the January 6 insurgency, in which a mob of Donald Trump supporters attacked the U.S. Capitol, requested documents relating to the incident from the National Archives and Records Administration, l federal agency responsible for protecting government documents. Donald Trump sued, claiming executive privilege on nearly half of the 1,600 pages of documents sought by the committee, even though current president Joe Biden has made no such claim. On November 9, a federal judge dismissed Mr. Trump’s lawsuit. His position, the judge wrote, “appears to be based on the idea that his executive branch” exists in perpetuity. But presidents are not kings, and [Mr Trump] is not president. He retains the right to assert that his files are privileged, but the outgoing president “is not constitutionally obliged to honor this assertion”. Mr. Trump will appeal. He has also made extensive claims of executive privilege on a wide range of House committee inquiries. What executive privilege and Mr. Trump’s claims are likely to succeed?
Broadly speaking, executive privilege is a doctrine that allows the president and executive officials to protect some of their records from the other two branches of government (Congress and the courts). Usually, the executive branch asserts this in response to a request from another branch of government. It is not mentioned in the constitution, although the courts have recognized its existence and stems from the separation of powers: while Congress or the courts could require at any time communication between the executive and the executive branch, the executive would no longer be fundamentally equal in power for the other two.
The precise types of communication that can be refused have long been the subject of debate: unsurprisingly, the executive tended to take a broad view of privilege, which the other two branches contested. Often, these arguments were resolved through negotiation rather than legal wrangling, as the parties involved viewed matters of executive privilege as more political than legal.
But not always. The Supreme Court weighed nearly 50 years ago, in United States vs. Nixon, when then President Richard Nixon asserted that the privilege was not subject to judicial review, meaning the courts could not intervene. on the contrary, it must be weighed against the legitimate interests and demands of other branches.
Subsequent federal courts have concluded that executive privilege applies to “direct decision-making by the President”, but that it can be overcome by showing that “the documents subpoenaed contain important evidence … the claim privilege cannot provide absolute immunity from congressional subpoenas (such as those issued by the special committee on January 6).
Even through the historically maximal approaches of previous presidents, the claims of privilege by Mr. Trump and his entourage are extraordinary. For example, Steve Bannon, a former adviser to Mr. Trump, defied a subpoena from Congress, claiming that Mr. Trump’s claim of privilege prevents him from honoring him, even though he was not a government employee in the run-up to January 6. It is not clear whether past presidents’ claims of privilege are legally binding, especially with respect to documents on which the current president has waived privilege.
The November 9 decision argues that they are not. An appeals court could overturn it, but that would have unfortunate implications: it would reduce the power of a sitting president in favor of an elder, over matters that have not traditionally been covered by the privilege of any. way. But that may be irrelevant. Mr. Trump and his entourage do not have to win in court. They simply need to continue legal wrangling until after next year’s midterm election, in which Republicans will likely take over the House, and the Jan.6 insurgency inquiry committee will cease to exist.