First, what is executive privilege?
It’s a loose legal protection for the president and top White House aides designed to give them confidentiality as they make tough decisions while governing, without fearing that those private conversations will be scrutinized by Congress.
Every modern president has leaned on executive privilege heavily when they don’t want to give information to Congress, but Trump took it to a new level. During his first impeachment, he blocked or tried to block every single records request and subpoena by citing executive privilege.
How Trump is trying to use it against Jan. 6 committee requests
Last week, the special House committee investigating the Jan. 6 insurrection requested a ton of information from federal agencies such as the National Archives and the FBI about the view from the White House and Republican members of Congress on that day. The committee asked for answers to questions including:
- Who in Congress talked to the White House on and around that day?
- Did Trump plan to march to the Capitol on the 6th?
- Was Trump planning to “disrupt the peaceful transfer of power”?
Their records requests indicate that they’re also looking into Trump’s broader efforts to fight his election loss and replace top government officials with his own loyalists, reports The Washington Post’s John Wagner.
Trump responded with a fiery statement: "Executive privilege will be defended, not just on behalf of my Administration and the Patriots who worked beside me, but on behalf of the Office of the President of the United States and the future of our Nation.”
He hasn’t officially asserted executive privilege in a letter to the Biden administration, but it sure sounds like he will.
The Biden administration will need to step in next
It’s not up to Trump whether he gets to claim executive privilege for information within the federal government. It’s up to the Biden administration, since President Biden is the one in charge of the federal agencies that have the records.
That’s likely why Trump’s statement about how he is going to invoke executive privilege reads like it was written to Biden, not Congress. The tone is president-to-president — them vs. an overreaching Congress.
There is a law, though — the Presidential Records Act — that allows Trump to evaluate any records of his that Biden will hand over to Congress. If Trump thinks those records are privileged information, he can tell Biden not to share them. But Biden has the final say.
If Trump isn’t happy with that decision, Trump could sue the administration, Congress or both to try to stop it. (More on all those lawsuits later.)
There isn’t much precedent for whether a sitting president can and should protect a former president, said Josh Chafetz, a law professor at Georgetown University who wrote a book about the separation of powers. Former president Harry S. Truman tried once to ignore a congressional committee subpoena that came after he was out of office. That created such a political firestorm that Congress backed down before the question of former presidents and executive privilege got settled in courts.
The Biden administration has been willing to waive executive privilege for very significant people in Trump’s orbit who the committee wants to talk to.
This summer, the Biden administration said that former Justice Department officials who worked under Trump were free to provide “unrestricted testimony” to the committee.
That’s a problem for Trump. Jeffrey Rosen, who was acting attorney general in the final days of Trump’s administration, has already talked to a different congressional committee about the president’s efforts to overturn his 2020 election loss. And he was pretty blunt. Rosen privately testified to the Senate Judiciary Committee this month that Trump essentially wouldn’t leave him and others at the Justice Department alone with his requests that they undermine the election results. (Trump’s lawyers attempted to get to Rosen to back down by sending a letter asserting executive privilege over his testimony but also said they wouldn’t go to court to stop him from testifying.)
And there could be more lawsuits
The committee will have the option to sue Trump to assert that he doesn’t have privilege over the documents they want.
Congress has successfully sued Trump before, to get his tax records. But it took awhile. The case went all the way to the Supreme Court and back down, and only recently did a judge rule they can have some — but not all — of the records they requested years ago.
Trump could also sue the Biden administration or Congress or both, claiming that Biden is handing over records that he deems private.
But he shouldn’t be so confident he can win. People involved in the investigation point out there’s a long history of the White House handing over sensitive communications to Congress when it’s in the greater public interest, and they argue the origins of the Jan. 6 insurrection certainly fit that mold.
President Gerald Ford testified about his pardon of former president Richard M. Nixon. President Bill Clinton made two senior White House officials available to Congress for an entire day of testimony during his impeachment trial.
Whether Trump can win a legal battle might be a moot point. He can drag things out for a few years knowing it’s possible Republicans take control of the House of Representatives in January 2023, and they decide to drop it. The top House Republican, Kevin McCarthy (Calif.), adamantly opposes this special committee.
“And that ends the whole thing,” Chafetz said.
Or Congress could get creative
The committee could negotiate. They don’t have a lot of time to get tied up in court, so they could allow Trump to keep something private in exchange for another records request.
Members of Congress whom the committee may soon be targeting are in a similarly tough situation as Trump. They could try to fight the subpoenas by arguing they are politically motivated, but “no court has recognized that as a reason in itself,” said Stanley Brand, a congressional ethics expert.
They’re also going to the private sector for information: They’re looking at social media posts related to Trump and call logs from key people on that day.
On Friday, the committee asked Google, Facebook and Twitter to hand over information related to misinformation campaigns at that time. And they will try to capture phone records from key people. CNN has reported that includes the president, his family and certain Republican members of Congress.
Congress does have the authority to jail people who don’t comply with their subpoena requests. And some experts — such as Chafetz — argue they should use it more often. But it’s a dormant power that Democrats haven’t been willing to exercise in the recent past when Trump officials ignore their subpoenas, let alone against a former president of the United States.
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