Don’t look now, but the law of executive privilege has undergone a substantial shift.
The Supreme Court Wednesday evening denied a motion by former President Trump to block the National Archive from turning White House materials to the House Select Committee on the January 6 Attack. The peculiar, four-page order, is a complicated document, but in combination with the broad and underdiscussed D.C. Circuit opinion it leaves in place, it has profound implications for Trump’s ability, and that of his allies, to make executive privilege claims in response to demands for testimony and information from the committee.
On its face, the Supreme Court’s order yesterday appears to mitigate the consequences for Trump of a D.C. Circuit opinion that rejects a number of his key claims in resisting the committee. The D.C. Circuit opinion has been hanging around since early last month with little notice or discussion—probably because the Supreme Court was poised to jump in any time. But in fact, the Supreme Court action does not mitigate the matter for Trump.
Put simply, the former president, whether he knows it or not, is now in a dramatically weaker position than he was only recently with respect to the committee. The new legal landscape, for example, almost certainly means that two top Trump officials—former White House Chief of Staff Mark Meadow and former top adviser Steve Bannon—can no longer argue that the privilege prevents them from cooperating with the committee. The same applies to other potential witnesses, and to the former president himself, should the committee seek his testimony. All, of course, may well continue to resist anyway—but if so, they proceed at much greater risk to themselves.
Herein a guide for the perplexed.
What the Courts Actually Did
The Supreme Court and D.C. Circuit action has taken place in the case of Trump v. Thompson, in which the former president sued to prevent the National Archives from turning over Trump’s correspondence and documents related to the Jan. 6 attack to the committee.
At the D.C. Circuit, a three-judge panel determined that former President Trump could not assert executive privilege to prevent disclosure of documents subpoenaed by the committee, at least insofar as the legislative and executive “[b]ranches agree that there is a unique legislative need for these documents and that they are directly relevant to the Committee’s inquiry into an attack on the Legislative Branch.”
The D.C. Circuit also held, in tandem with its first conclusion, that it “need not conclusively resolve whether and to what extent a court could second-guess the sitting President’s judgment that it is not in the interests of the United States to invoke privilege.” Disputes between the President and Congress over document requests usually trigger balancing tests under which—per Mazars v. Trump and Senate Select Committee on Presidential Campaign Activities v. Nixon—courts are to weigh competing constitutional interests. But here, the court rules, “[u]nder any of the tests advocated by former President Trump, the profound interest in disclosure advanced by President Biden and the January 6th Committee far exceed his generalized concerns for Executive Branch confidentiality.”
In the Supreme Court’s order Wednesday evening, the justices appeared to cabin the D.C. Circuit’s ruling a bit. The order, representing all of the justices save Clarence Thomas, reads:
Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision. Any discussion of the Court of Appeals concerning President Trump’s status as a former President must therefore be regarded as nonbinding dicta.
The ruling thus seems to reserve for another day the question of whether a former president can assert the privilege—and Justice Kavanaugh actually wrote a short opinion explaining why he disagrees with the D.C. Circuit on the point.
But the justices also seized on the D.C. Circuit’s alternative basis for resolving the case—which is actually far broader than the mere proposition that a former president can’t assert the privilege in the face of the current president’s objections. Eight justices of the Supreme Court, declined publicly to note that they would disturb the D.C. Circuit’s finding that Trump’s executive privilege claim would fail even if he were the incumbent president. In the past, the court observes, Presidents have “waived privilege in times of pressing national need.” The D.C. Circuit ruled, and the Supreme Court left undisturbed, that the Jan. 6 insurrection was a “clear and apparent effort to subvert the Constitution.” In such an “extraordinary” situation, any President’s claim of executive privilege will fail to stand up to Congress’s need for investigation and, in turn, disclosure of the former president's communications.
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