I’ve noted several times over recent weeks that former President Trump lacks most of the unique protections he had as President. That means the Jan 6th committee should be able to press a real investigation whereas the House committees in the previous Congress and the two impeachment processes could not. Much of this is because ex-Presidents have no executive privilege. But it’s just as much that they don’t control the Justice Department and that possession is 9/10ths of the law. The current President, in some cases directly and in others indirectly, has custody of the records of the government of the United States. But it’s a small wrinkle to this story that I want to expand on today, both because it’s interesting to know in its own right but because it’s a window into how this latest investigation really puts not only the judiciary but the elite legal profession itself on trial.
First, former Presidents have no executive privilege.
How do we know this? Well, it’s what basically everyone assumes. It’s the assumption underlying virtually all of the case law. It’s the assumption behind the one statute law that governs this – the Presidential Records Act of 1978. Under that law a former President can request that certain documents be shielded. But that request has to go through the current President. The former President is dependent on the authority vested in the current President. There’s only one President at a time.
Beyond this or perhaps better to say underlying all this is the fact that if it was any other way there’s just no way to reconcile that with the constitutional system. The constitutional doctrine of ‘executive privilege’ stems from various powers and prerogatives the constitution gives to the President. Executive privilege itself isn’t explicitly stated in the constitution but the powers that it is based on are. Former Presidents have none of those powers. So executive privilege, which derives from those powers, can’t be something he or she has either.
We know from hard experience that President’s have large grants of power that are largely unreviewable, although they’re limited in many cases by the powers of other branches. Can it really be that they’re reviewable or limited by someone who’s not President, by a mere private citizen? If the current President decides that it is in the interests of the United States to make certain records public, can it really be that a former President can say no? Or to put it more directly can it be that an elected President and the current Congress decide that X must happen but this one private citizen can say no? None of that makes sense. The constitution has no place for a former President retaining some presidential powers, still having the standing to make decisions on behalf of the country when someone else has already been given that job.
So it all seems pretty clear cut. So what’s the issue? Well, one Court decision in the Nixon litigation seems to suggest that a former President, Nixon in this case, has at least some standing to get into court over executive privilege. Most observers dismiss this as poorly chosen language or simply a non-sequitur the Court didn’t fully think through. And it is true that the precise issue has never been directly litigated. Mostly this is because current Presidents have many shared institutional interests with predecessors. So either for that reason or just courtesy Presidents have almost always honored these requests.
A couple weeks ago Law Professor Jonathan Shaub discussed all these issues in much, much greater detail in an article at the Lawfare blog. It’s a very interesting discussion. And if you’re interested in this from the case law and constitutional law perspective I recommend it. He concludes that 1) former President’s have no executive privilege; 2) that the documents in questions are very likely not protected by executive privilege even if Trump had the authority to invoke it; and finally 3) that notwithstanding points 1 and 2 the committee is unlikely ever to see these documents because President Trump will bottle the subpoenas up in court until 2023, at which point Republicans will likely take over the House and, if they do, certainly disband the committee.
I hope that is not the case. And I would like to think that the Attorney General, speaking for the United States, can speak to the courts about the need to settle any controversy quickly. But let’s say it is the case. We are talking well over a year and a matter of constitutional interpretation which virtually everyone believes is close to open and shut. The idea isn’t that the Nixon case makes it seem likely that an ex-President can invoke executive privilege. It’s that the one opinion and its probably sloppy or poorly thought out language creates enough ambiguity that Trump stands a decent chance of getting it into court. We are being told that in effect the decision of the current President and a House of Congress to investigate a violent assault on the seat of government can be stymied by a former President who led the attack! Indeed, the same former President who was put on trial for the crime and had a big majority of the Senate (57 votes for conviction) vote to convict him. And we are told that this is not because of any legitimate authority or privilege but simply because the courts – which are in essence under the management of the highest echelon of the legal profession – can’t decide things quickly enough. And by quickly enough here we mean they can’t process the question in less than a year.
They say – usually in very different contexts – that justice delayed is justice denied. If Shaub’s prediction is right, that is certainly the case here. And that is a grave indictment of the whole legal profession, especially the elite community of law professors who largely define – on the right and left – how the law functions in our society. The legal profession is one of the groups the Republic relies upon for protection and here it’s pretty clearly and disastrously failed.