What is executive privilege? The slippery legal doctrine claimed by Trump for keeping Jan 6 records secret

Attempts by US presidents to keep their sensitive discussions sealed stretch back to Washington and Jefferson, but will Donald Trump be able to convince a court?

Independent Staff
Tuesday 19 October 2021 13:11
Psaki throws insurrection dig at Trump as she pushes back reporter questions on executive privilege
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Donald Trump has sued to stop the US House of Representatives from examining presidential records relating to the 6 January insurrection, claiming “executive privilege”.

But what actually is executive privilege, and can Mr Trump claim it to nix the House’s investigation?

The answer is a slippery one, because executive privilege is never mentioned in the US Constitution. Instead it is a legal convention that has grown organically out of the centuries-long tug of war between presidents struggling to protect their secrets and legislators trying to bring them to light.

Joe Biden’s administration has asked officials to waive the privilege for Mr Trump’s records, arguing that uncovering the truth behind an attempted coup is more important than the traditional confidentiality of presidential discussions.

Lawyers for Mr Trump have pushed back hard, describing Mr Biden’s decision as “a myopic, political manoeuvre” to “accommodate his partisan allies” and arguing that the House’s probe is so broad as to be unconstitutional.

A legal theory almost as old as the Republic

The earliest attempt to invoke executive privilege is probably by America’s founding messiah himself: George Washington. In 1796, Washington refused a request by the House to hand over documents about diplomatic negotiations with the United Kingdom, saying the House had no role in the ratification of treaties.

Thomas Jefferson, too, attempted unsuccessfully to rebuff a similar demand from lawyers for Aaron Burr, the infamous killer of Andrew Hamilton, who was then on trial for attempting to seize territory from Spain and establish a new country (he was acquitted).

Andrew Jackson, Harry Truman, and Dwight Eisenhower also tried their hands at it, but the modern version of the doctrine dates from the Watergate Scandal in the 1970s, when President Richard Nixon tried to hold back recordings of conversations in the Oval Office.

President Nixon in a Vietnam War planning meeting in November 1972, just a few months after the Watergate burglary but two years before finally being forced to resign over it

The case went to the Supreme Court, which in 1974 found that presidents did indeed have a “valid need” for secrecy in their dealings with advisers and officials, lest the threat of exposure “temper candour with a concern for appearances and for their own interests, to the detriment of the decision-making process.”

Nevertheless, the court ruled that there were some exceptional circumstances that overruled this privilege, and ordered Nixon to fork over the tapes. A similar ruling was made following the September 11 attacks.

‘An assault on our Constitution’

Joe Biden’s officials argue that January 6 is one of those exceptional circumstances. While Mr Trump himself does not face criminal charges, unlike in Watergate, more than 630 people have been arrested in connection with the riot.

“Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them,” White House counsel Dana Remus told the National Archives, which holds presidential records.

“The constitutional protections of executive privilege should not be used to shield, from Congress or from the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”

A major goal of the insurrectionists was to stop the Senate from confirming the final vote tallies from the 2020 presidential election, hoping to overturn its result and install Mr Trump as president. A Democrat-controlled House committee accuses Mr Trump of encouraging that, and is investigating how culpable he might be.

‘Some were in communication with president’: Jan 6 committee issues subpoenas to Trump loyalists

The Archive must follow the orders of the sitting president, unless a court rules otherwise. And so, having vowed to “take all necessary and appropriate steps to defend the Office of the Presidency”, Mr Trump is now trying to obtain such a ruling.

“The committee’s request amounts to nothing less than a vexatious, illegal fishing expedition openly endorsed by Biden and designed to unconstitutionally investigate President Trump and his administration,” his lawsuit reads.

“This self-described ‘sweeping’ request is almost limitless in scope... [and] seeks records with no reasonable connection to the events of the day.”

Can Trump succeed in sealing his records?

In the past, Mr Trump has invoked executive privilege to block the release of the full Mueller Report, documents concerning the US census, the testimony of his former counsel, and his own tax returns, with varying degrees of success.

A court will decide whether the need to investigate what happened on 6 January exceeds the public interest in keeping Mr Trump’s records secret. Experts told The Independent that Mr Trump’s suit is unlikely to stand up.

Yet some believe the battle will have broader political consequences. By convention, presidential records have usually remained sealed for about five years after presidents leave office, and sometimes far longer. Opponents could argue that Mr Biden has broken that convention.

“Every time a president does something controversial, it becomes a building block for future presidents,” Saikrishna Prakash, an expert in presidential powers at the University of Virginia, said earlier this month.

In other words, Biden’s decision could soon enough result in his own records being exposed when the partisan pendulum swings in the other direction.

For Democrats, of course, that may be a price worth paying.

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