Trump and Biden ironically may need to rely on each other in order to maintain or assert privilege over communications they’d like to keep under wraps.
The 2024 election cycle has resurfaced longstanding debates over presidential power and how much independence the executive enjoys from other branches of government.
Executive privilege, which refers to presidents’ withholding communications from other branches, has come under scrutiny with issues surrounding both President Joe Biden and former President Donald Trump. The idea behind executive privilege is that presidents should have freedom to speak with advisers without fear of retaliation over the content of their comments.
George Washington University law professor W. Burlette Carter told The Epoch Times via email: “Executive privilege is designed to allow presidents the broadest freedom to speak and act in the presidency in pursuit of the public good.”
President Trump has asserted executive privilege before and after leaving office. Two of his associates—former White House advisors Peter Navarro and Steve Bannon—were sentenced to jail for refusing to comply with congressional subpoenas while citing executive privilege.
President Trump has tried asserting privilege over several areas, including correspondence related to Jan. 6, in order to challenge subpoenas of his former aides for a grand jury probe into Jan. 6, over his financial records, and over boxes of documents he transferred from Mar-a-Lago to the National Archives.
President Joe Biden, meanwhile, has asserted executive privilege over the audio recordings of his two-day interview with special counsel Robert Hur, who was investigating his handling of classified documents.
The executive privilege claims from both have raised questions about when its assertion is legally valid, as well as how much other branches can demand of the executive.
What Is Executive Privilege?
Executive privilege isn’t explicitly granted in the Constitution but derives from the document’s general concept of separation of powers.
Executive privilege is thought to have been asserted since the beginning of the Republic. The nation’s first president, George Washington, refused to cooperate with Congress’s request for information on his negotiations in the Jay Treaty with Great Britain.
The concept of executive privilege was more firmly outlined in two Supreme Court cases involving former President Richard Nixon. Those cases—United States v. Nixon in 1974 and Nixon v. General Services Administration in 1977—collectively established that Congress could require storage of presidential records, and that the president’s interests in privilege must be balanced against those of the entities seeking the records.
Sen. Sheldon Whitehouse (D-R.I.) questions Assistant Attorney General for the Office of Legal Counsel Christopher Schroeder as he testifies about executive privilege doctrine at the U.S. Capitol on Oct. 18, 2022. (Chip Somodevilla/Getty Images)
In United States v. Nixon, the Supreme Court underscored the legal importance of executive privilege by stating that it “is fundamental to the operation of Government, and inextricably rooted in the separation of powers under the Constitution.”
Since George Washington, multiple administrations have cited executive privilege over sensitive materials.
Most recently, Attorney General Merrick Garland cited U.S. v. Nixon in a May 15 letter requesting that President Biden assert privilege over the audio of his interview with Mr. Hur rather than complying with subpoenas from two House committees.
The same decision clarified, however, that generalized interests in confidentiality weren’t enough for presidents to assert executive privilege over evidence needed for “the fair administration of criminal justice.”
Court decisions involving President Nixon have clarified that the privilege is limited and that presidents themselves aren’t the final arbiters of how far it extends. Rather, as the U.S. Court of Appeals for the D.C. Circuit said in Nixon v. Sirica, the judicial branch has ultimate say over its applicability.
What Does Executive Privilege Protect?
The controversies surrounding investigations into both President Biden and President Trump have illustrated the somewhat messy debate over what executive privilege actually protects.
It’s a long-debated question that hinges on the nature of the executive’s activities and the interests other branches have in its communications.
These interests can vary but Congress may want to obtain information in order to better craft legislation. The judiciary, meanwhile, could be seeking that information for prosecutions.
According to Ms. Carter, former presidents were able to assert executive privilege only “in cases alleging personal liability of the President for criminal or civil behavior.”
She said that could occur “only so long as the action claimed to be privileged was in the course of performing presidential duties.”
“Now if the president walks outside the White House and shoots someone after having a conversation about that plan, that is a different matter. No privilege during or after the presidency,” Ms. Carter said.
Former special counsel Robert K. Hur testifies in front of a video of President Joe Biden at the U.S. Capitol on March 12, 2024. (Win McNamee/Getty Images)
The distinction between official and unofficial acts of presidents reached the Supreme Court this year but with a different aspect of executive power—that of presidential immunity. In April, the Supreme Court heard oral argument over President Trump’s claim that he enjoyed immunity from prosecution for the official acts that the Department of Justice (DOJ) had indicted him for in Washington.
The court will issue its decision in June and experts speculate that the justices will issue a refined definition of presidential immunity to cover official acts while directing the district court to parse out which of President Trump’s acts fell under that classification.
Trump’s Privileges and Immunities
It’s unclear how the ruling will eventually parse President Trump’s activities on and leading up to Jan. 6, 2021.
Regardless, in distinguishing between official and non-official acts, the court could prompt consideration about how both executive privilege and presidential immunity apply to certain aspects of the DOJ’s indictment.
Pacific Legal Foundation Vice President Jim Burling said President Trump will likely face an “uphill battle” if he tries to assert executive privilege over communications in his Washington case.
“He is going to have to prove whatever he did on January 6—he was acting as president rather than a former candidate or a losing candidate,” he told The Epoch Times.
In his Washington trial, President Trump’s defense attorneys might claim that he was relying on the advice of his aides or attorneys in making some of his decisions. One of his attorneys, John Lauro, has already made this argument on television, saying that President Trump thought he was following the advice of his attorney.
Former federal prosecutor Neama Rahmani told The Epoch Times that if President Trump raises that type of defense, he might be forced to waive executive privilege, which extends to White House aides.
Mr. Rahmani said the special counsel’s office may also try to force President Trump to waive attorney-client privilege. Both forms of privilege, he suggested, could hinder the prosecution’s ability to make its case.
“For the prosecution to prove that Trump conspired to defraud the United States … they really need to get inside his head and prove that he knew … that he lost the election and that he intended to overturn the results anyway,” Mr. Rahmani said.
Weighing Executive and Legislative Interests
“Once the privilege is asserted, the court weighs the interests of the various groups involved,” Ms. Carter said.
“Remember, just because the DOJ says there was a crime does not prove there was a crime. And congressional investigations can be quite political. In both situations, the privilege holder’s rights and the purpose of the privilege must be considered.”
In issuing a subpoena for President Biden’s audio files and other documents, House Republicans told the attorney general in February that the materials served Congress’ interest in oversight of the DOJ, its ongoing impeachment inquiry into President Biden, and potential legislation reforming special counsel investigations.
The White House responded on May 16 by telling House Judiciary Chairman Jim Jordan (R-Ohio) and Oversight Chairman James Comer (R-Ky.) they lacked a legitimate need for audio recordings as the administration had already given Republicans documents relevant to Mr. Hur’s investigation—including transcripts of his interviews with President Biden and his ghostwriter Mark Zwonitzer.
“The absence of a legitimate need for the audio recordings lays bare your likely goal—to chop them up, distort them, and use them for partisan political purposes,” White House Counsel to the President Edward N. Siskel wrote the committee chairs in a letter.
Mr. Garland also raised concerns in his May 15 letter that granting the Committees’ requests for the audio recordings would chill cooperation in future high-profile investigations such as Mr. Hur’s.
Supreme Court Weighs In
Democrats controlled the House from 2019 through 2022, which gave them leadership over committees that could issue subpoenas for President Trump—which they did for his tax returns and other financial information, as well as records related to the Capitol breach on Jan. 6, 2021.
President Trump fought both of those efforts, teeing up Supreme Court decisions—in Trump v. Mazars and Trump v. Thompson—that helped clarify the boundaries between executive and legislative power.
The 2019 majority opinion asserted that both the former president and Congress went too far in defending the scope of their respective interests. In that case, Trump v. Mazars, President Trump hadn’t asserted executive privilege but claimed that Congress lacked a legitimate legislative purpose in its subpoena of his accounting firm, Mazars USA.
Demand Justice projects an upside down U.S. flag onto the U.S. Supreme Court to call attention to Justice Alito’s alleged actions, in Washington on May 21, 2024. (Paul Morigi/Getty Images for Demand Justice)
Even though President Trump was suing in his personal capacity and Congress was seeking private rather than official documents, the court said the case still raised concerns about separation of powers.
Less than two years after Trump v. Mazars, the Supreme Court got closer to the question of how separation of powers concerns bore on subpoenas of privileged information. In Trump v. Thompson, the former president attempted to prevent the National Archives from handing over documents related to Jan. 6 as part of the House’s investigation into the events of that day.
The justices in that case upheld the D.C. Circuit’s opinion arguing that President Trump didn’t prove he deserved executive privilege over the requested documents—even if he were still in office.
Can Former Presidents Assert Executive Privilege?
President Trump and President Biden ironically may need to rely on each other in order to maintain or assert privilege over communications and testimony they’d like to keep under wraps.
In 2021, President Biden rejected President Trump’s attempt to assert executive privilege after leaving office. President Trump had tried asserting privilege over records that the House Jan. 6 Committee sought from the National Archives.
White House Counsel Dana Remus said at the time that “unique and extraordinary circumstances” surrounding Congress’ investigation into Jan. 6. “The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself,” she said.
If President Trump wins in 2024, he could theoretically withhold the same privilege from President Biden in future investigations by either Congress or the judiciary.
Rep. Jamie Raskin (D-Md.) speaks during a news conference outside the U.S. Capitol on Jan. 5, 2024. (Alex Wong/Getty Images)
Mark Rozell, dean at George Mason University and author of “Executive Privilege: Presidential Power, Secrecy and Accountability,” has said that former presidents don’t enjoy meaningful assertions of privilege.
In an article for Just Security, he and Kel McLanahan, executive director of the public interest law firm National Security Counselors, wrote that current officeholders can prevent former ones from asserting that privilege.
The Supreme Court hasn’t ruled on whether former presidents can overcome waivers of privilege by incumbents. It did touch on the issue, however, when it ruled on President Trump’s attempt to prevent Congress from obtaining records from the National Archives.
Supreme Court Justice Brett Kavanaugh’s concurring opinion in Trump v. Thompson ultimately upheld the lower court’s ruling but raised concerns about the question of whether presidents lost privilege after leaving office.
“By protecting the confidentiality of those internal communications, the Presidential communications privilege facilitates candid advice and deliberations, and it leads to more informed and better Presidential decisionmaking,” he said.
Future of Executive Privilege
Like presidential immunity, executive privilege isn’t explicitly defined in the U.S. Constitution and therefore is more open to future interpretation by courts than other federal powers might be. As President Trump’s cases move through the courts, it’s unclear whether and how they will raise significant enough issues to prompt a Supreme Court decision on privilege.
“I don’t think the court will decide the big issue of privilege assertions re Trump’s handling of documents before the election,” Ms. Carter told The Epoch Times.
“My guess is the Court will say that people have a right to vote on a candidate of their choice and they don’t want to interfere by handing down a ruling prior to the election or even prior to him being sworn in.”
She said the court could require a briefing on the issue before the 2024 election and therefore “serve a public purpose because people could read the arguments.”
White House trade adviser Peter Navarro speaks as President Donald Trump and Secretary of Education Betsy DeVos look on, during a briefing at the White House on March 27, 2020. (Drew Angerer/Getty Images)
Mr. Navarro has called the ruling against him unprecedented and predicted that his case will reach the Supreme Court. While the court hasn’t ruled on the merits of his case, it denied his request to stay out of prison pending appeal.
Both Mr. Navarro and Mr. Bannon received subpoenas from the House Committee investigating Jan. 6 but refused to comply with them while claiming President Trump had asserted privilege over their testimony. Both were found guilty of contempt of Congress and sentenced to four months in prison.
The U.S. Court of Appeals for the D.C. Circuit rejected Mr. Bannon’s appeal and an attempt by Mr. Navarro to stay out of prison.
Article III senior counsel Will Chamberlain told The Epoch Times those cases were unlikely to prompt major changes in precedent.
“The ruling was not that executive privilege was invoked, and it was found ineffective,” he said, referring to both Mr. Navarro’s and Mr. Bannon’s cases. “The problem was they both just … defied the subpoena.”
Executive privilege generally protects advisers like Mr. Navarro and Mr. Bannon if presidents extend the privilege to those individuals.
U.S. District Court for the District of Columbia Judge Amit Mehta, however, ruled that Mr. Navarro hadn’t provided enough evidence to show that President Trump asserted privilege over him testifying before Congress.
Mr. Bannon, meanwhile, unsuccessfully argued that he relied on the advice of an attorney in claiming an executive privilege exemption from the Jan. 6 committee’s subpoena.