Almost a year out of office but still trying to push the outer limits of the Constitution, former President Donald Trump is back at the Supreme Court for another try. This time, he is attempting to claim a part of a presidential prerogative that President Joe Biden now holds.
It is a “privilege” that goes with the office, a sweeping authority not mentioned in the Constitution but quite securely protected by long-standing constitutional interpretation. It is the power to refuse to disclose internal communications that occur in the daily operations of the White House.
Existing in America since the time of George Washington, but also part of a broader legal tradition that dates back at least to the 1570s in England, the doctrine of “executive privilege” has its roots in privacy, the privacy of personal conversation. It embraces a version of the privacy that goes with intimate conversations between, say, husband and wife, doctor and patient, pastor and penitent, attorney and client. In other words, it protects “privileged information.”
In law, it functions as a rule of evidence. Most rules about evidence are designed to enhance a search for truth within the legal system, by bringing out otherwise reliable but hidden or obscured facts. But as a rule of evidence, the idea of “privilege” is designed to do just the opposite – to keep actual, private conversations from being disclosed.
For Presidents, “executive privilege” is derived from the Constitution’s Article II on the powers of the federal Executive branch. Claims of presidential privilege have been used to try to keep the contents of White House conversations or other communications from being shared with the courts, Congress, or criminal prosecutors.
Just as “executive privilege” is nowhere mentioned in the Constitution, Congress’s power to investigate also does not appear in that basic document. However, Congress has been claiming that power since 1792, and the Supreme Court put it on a firm constitutional basis in 1927, recognizing it under Article I as necessary to the authority to enact laws.
The Trump case, though, would be the first time that the Court would deal with a claim of “executive privilege” by a former President when the current President has refused to support that claim, asserting his own authority to decide when to invoke the privilege.
Lower federal courts, conceding that Trump has some discretion to claim the privilege even though he is out of office, ruled that it had to give way to President Biden’s decision that it was “not in the national interest” for Trump to claim it.
Trump, who has had mixed results in multiple appeals to the Supreme Court, has returned with a plea to block disclosure of Trump White House files to the special House of Representatives committee that is investigating the violent attack on the Capitol in Washington by pro-Trump rioters last January 6, seeking (but failing) to block final congressional confirmation of President Biden’s election victory in 2020.
When the ex-President’s appeal reached the Justices on December 23, after he had lost in two lower courts, it involved nearly 800 pages of White House documents. Those files include daily presidential diaries, telephone call and visitor logs, drafts of presidential speeches and correspondence, internal e-mails, notes of White House staff, and a draft presidential order on claims of fraud in the 2020 election, among many other confidential materials.
That probably will not be all that ultimately could be involved, since the United States Archivist, the keeper of the past President’s records, is continuing to check for other files that might be disclosed to the House committee. That search recently turned up another 551 pages that have not yet been fully analyzed for possible release to the committee.
The processing of the committee’s demands is occurring under a 1978 federal law, the Presidential Records Act. For the first time in history, that law established public ownership of presidential records, thus ending the prior practice that presidents took their papers with them when they left the White House, with most ending up in presidential libraries.
As the Trump case stands today, the Supreme Court has not agreed to review his challenge and has not yet acted on his request for an immediate order to block any further transfer of files to the committee and to block the committee from making any use of the files it obtains.
The House committee, while opposing the appeal, has asked the Court to speed up its action on the case, so that, if it is reviewed, it can be decided during the Court’s current term. The committee is working on a tight deadline to make an official report sometime in 2022 – before the national elections next November.
The questions before the Court:
Trump’s lawyers posed a single, overall question in the appeal: Does the House committee’s demand for confidential White House files violate the Constitution and federal laws, entitling him to an order barring transfer or use of those materials?
Within that overall question, these are the specific issues the appeal seeks to raise:
** Will the Court temporarily block transfer or use of any of the White House files pending Supreme Court review, and will it, after review, permanently block transfer and use? (It would take the votes of four Justices to grant review and five votes to stop any immediate or later transfer or use of files.)
** Does the House committee’s investigation and its demand for confidential files violate the Constitution because (a) the investigation has no specific legislative purpose, (b) it seeks to punish for crimes, an authority Congress does not have, (c) it violates the separation of powers between the branches of the national government, (d) it intrudes on the former President’s “executive privilege” without justification, and (e) the committee made no effort to get the information elsewhere before demanding internal White House files?
** Do the views of the President currently in office regarding the legitimacy of the House committee investigation override the constitutional limitations on Congress’s powers when those powers are used against a former President of a different political party?
** Does the House committee’s demand for the confidential files, and the Archivist’s process of locating and disclosing those files to the House committee, violate the Presidential Records Act of 1978 and rules implementing that Act, for the same reasons that the Constitution is being violated?
If the Court agrees to decide the case, and if it decides now or later to block the disclosure of the Trump files to the House committee, it probably will be guided significantly by modern Court precedents that grew out of presidential scandals — the Watergate political affair involving President Richard Nixon that led to Court rulings in 1974 and 1977, the private sexual harassment scandal involving President Bill Clinton’s pre-presidential conduct, leading to a Court decision in 1997, and the private business dealings of Donald Trump before and during his presidency, leading to two rulings last year: one limiting House investigations of his private business data and one allowing a state prosecutor to obtain his personal and business tax records for use in a still-ongoing criminal investigation.
What makes the new Trump case constitutionally unique is that it involves a direct conflict over the confidentiality of White House files between a sitting and a former President, with the incumbent given the last word by lower federal courts.
Given the historic threat to the way presidential elections are to work in the U.S., in the wake of the January 6 attack on the Capitol and the former President’s post-election campaign against the 2020 result, the outcome of this Trump case that will be most important is whether it aids or impedes the House committee’s search for answers to guide the future. Not least of those answers will be whether a former President faces criminal prosecution with no legal immunity against it.