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.
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.
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.
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