ON NOVEMBER 12th, a federal grand jury indicted Steve Bannon, a former adviser to Donald Trump, for contempt of Congress. Mr Bannon defied a subpoena from the House Select Committee investigating the January 6th insurrection, in which a mob of Donald Trump supporters attacked America’s Capitol. Mr Bannon refused to answer questions because Mr Trump asserted executive privilege over their communication—even though Mr Bannon was not a government employee in the run-up to January 6th. That is an unusual assertion of privilege, which customarily covers communication between the president and executive-branch employees. What is executive privilege, and are Mr Trump’s claims likely to succeed? Broadly, executive privilege is a doctrine that permits the president and executive-branch officials to shield some of their records from the other two branches of government (Congress and the courts). Typically, the executive branch asserts it in response to a request from another branch of government. It is not mentioned in the constitution, though courts have recognised that it exists, and derives from separation of powers: if Congress or the courts could demand any executive-branch communication at any time, the executive would no longer be fundamentally equal in power to the other two. Precisely what sorts of communication can be withheld has long been subject to debate: unsurprisingly, the executive has tended to take an expansive view of privilege, which the other two branches have contested. Often these arguments were resolved through negotiation rather than legal wrangling, because the parties involved understood executive-privilege questions as more political than legal. But not always. The Supreme Court weighed in nearly 50 years ago, in United States v Nixon, when then-President Richard Nixon asserted that privilege was outside of judicial review, meaning courts could not weigh in. The court disagreed, finding that it extends to some communications related to national security, but that privilege is neither absolute nor beyond review; instead, it must be balanced against the legitimate interests and claims of the other branches. Subsequent federal courts have found that executive privilege applies to “direct decision-making by the president,” but that it can be overcome by showing that “the subpoenaed materials contain important evidence...not available with due diligence elsewhere,” and that a privilege claim cannot provide absolute immunity from congressional subpoenas (such as those issued by the January 6th Select Committee). Even by the historically maximal approaches of previous presidents, the claims of privilege emanating from Mr Trump and his circle are extraordinary. For instance, Steve Bannon, a former adviser to Mr Trump, has defied a congressional subpoena, claiming that Mr Trump’s claim of privilege bars him from honouring it—even though he was not a government employee in the run-up to January 6th. It is unclear whether former presidents’ assertions of privilege are legally binding, particularly concerning materials over which the current president has waived privilege. The ruling on November 9th holds that they are not. An appellate court could overturn it, but that would have unwelcome implications: it would reduce the power of a sitting president in favour of a former one, over materials that have not traditionally been covered by privilege anyway. But that may be beside the point. Mr Trump and his circle do not have to win in court. They merely need to keep the legal wrangling going until after next year’s midterm elections, in which Republicans will probably take back the House, and the committee investigating the January 6th insurrection will cease to exist.  The far-right nationalist will prop up Binyamin Netanyahu’s government Several of the state’s congressional districts are uncomfortably competitive for Democrats The end of cheap borrowing will make the property ladder harder to climb
A version of this story appeared in CNN’s What Matters newsletter. To get it in your inbox, sign up for free here. Former President Donald Trump’s effort to block Congress from investigating the January 6 insurrection has entered a new phase of obstruction. Follow this logic:
Can a former president claim the protection for an informal aide? The law may not be on their side. Time probably is. January 6 investigators have promised to seek criminal charges against Bannon when he blows past a deadline to comply with a congressional subpoena. Several other former advisers, including Dan Scavino and former White House chief of staff Mark Meadows, have also been the subject of subpoenas for information related to the insurrection. Presidents have been fighting with Congress for all of US history about the concept of executive privilege. The executive in question is the president and the privilege is his or her right to get honest advice in private and protect it from Congress and the courts. The term “executive privilege” dates back to the Eisenhower administration, but fights over the separation of powers have been going on for centuries in the US. The idea is that presidents can shield their aides from having to share internal communications with Congress when it is conducting oversight, as the Constitution suggests it must. Note: While the Constitution does not use that word, “oversight,” it does require Congress to make laws, which necessarily requires lawmakers to understand how the president is executing them. RELATED: January 6 investigators are talking about criminal contempt charges for ignored subpoenas. Here’s what that means. There’s a natural tension there – the official duties of one branch of government conflicting with the official duties of another. “You want advisers to feel free to explore a range of options, including options that might be unpopular, and to have a free flow of conversation with the president in order to develop the best possible options,” former White House Counsel Neil Eggleston, who worked in the Obama administration, told Harvard Law Today. The danger, of course, is that this honest protection could be used to hide illegal or improper behavior. Trump wants to carry that protection with him out of office and stretch it to cover people like Bannon, who had no official capacity. It’s an odd twist in a debate that’s touched every single president, including Republicans and Democrats.
When questions of executive privilege are taken up in the courts, they take forever. Cases involving both Obama and Bush were not resolved until they were out of office. RELATED: Here’s what happens if a congressional subpoena is ignored (and what it means for the January 6 committee) Eggleston cites Supreme Court cases from the Nixon era to argue it’s actually President Joe Biden who should decide if Trump gets privilege now that he’s out of office. “Under our system, the authority attaches to the office, not the human,” Eggleston told Harvard Law Today. Trump initially used executive privilege to hide special counsel Robert Mueller’s report on the Russia investigation from Congress and the public. He used it to hide documents related to the Census from Congress. Neither of those ultimately worked, but they were part of an attempted expansion of executive privilege. RELATED: Donald Trump is doing everything he can to hurt Republican chances in 2022 Trump simply released the damning transcript of his infamous phone call with Ukrainian President Volodymyr Zelensky, part of a nothing-to-see-here strategy to downplay the fact that he exerted political pressure on Ukraine to damage Biden. But then, as impeachment approached, many White House aides refused to cooperate with House investigators. They simply ignored subpoenas and refused to testify or turn over documents. This lack of cooperation became the basis for one of the articles of impeachment, but Democrats, who were in a hurry at the time, didn’t pursue the subpoenas in court. Other witnesses – the ones you saw testify against Trump – ignored Trump and cooperated with investigators. He was impeached in the House, but Republicans in the Senate voted against convicting him. Not satisfied simply with privilege, Trump’s lawyers later argued he was also entitled to “total immunity.” The Supreme Court disagreed, deciding he could not hide his financial records from lawmakers and state authorities. Questions of privilege for presidents date back to George Washington, who didn’t want to tell Congress exactly how the Jay Treaty with Britain was negotiated. Thomas Jefferson did it too, as I first learned when writing about Trump’s claims of privilege back in 2019: When President Thomas Jefferson argued in 1807 that he didn’t have to fully comply with a subpoena for documents, he was having his former vice president tried for treason for attempting to incite a revolution out West. The former-vice-president-turned-frontier-revolutionary on trial was Aaron Burr, of ‘Hamilton’ dueling fame. The Supreme Court, in the voice of Jefferson’s foil Chief Justice John Marshall, disagreed with the President’s argument, Jefferson ultimately coughed up the documents Burr wanted for his defense and Burr ultimately walked free. Richard Nixon worried he weakened executive privilege with his repeated attempts to invoke it. But Trump supercharged the concept of privilege with wild and blanket assertions that continue even after he’s left office and to cover people like Bannon with no official capacity. Presidents usually try to help each other out on executive privilege and defend each other’s claims after they’ve left office. In a break with that tradition, Biden’s administration told the National Archives to release documents relating to January 6 to congressional investigators. Trump could go to court to keep the documents sealed. These cases often take years and Trump probably won’t have to wait that long. If Republicans take control of the House or Senate after the 2022 midterms – and history suggests they will – all of the January 6 inquiries will almost surely go away. |
Why should the President have executive privilege?
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