Landmark decision looms in dispute over executive privilege

The question of whether former President Donald Trump can legally block a request for more than 770 pages of his presidential documents by the House select committee investigating the Jan. 6 attack on the U.S. Capitol is now making its way through the courts with an appeals court hearing scheduled for Nov. 30.

As a new ABA Legal Fact Check posted on Nov. 17 outlines, the dispute between Trump and the Biden administration over who controls the former president’s White House documents could be decided by the U.S. Supreme Court. The case represents a potential landmark decision because the high court has never addressed a situation in which a former president has invoked executive privilege and the sitting president rejected it.

The fact check notes that executive privilege itself is not mentioned in the U.S. Constitution, but over decades courts have found it is rooted in the separation of powers doctrine that divides the power of the U.S. government into legislative, executive and judicial branches. The fact check explains that the modern doctrine emerged in the 1970s through two U.S. Supreme Court decisions involving documents of former President Richard Nixon, who resigned in disgrace in 1974 in the aftermath of Watergate.

Former President Trump has challenged the House committee’s request, saying the investigation exceeds Congress’ constitutional power. He also contends a 1978 law that assigns the National Archives and Records Administration authority to warehouse and release presidential documents is unconstitutional because it restricts his ability as a former president to exercise his right of executive privilege.

Sitting presidents can issue regulations under executive orders to help implement the 1978 law. In 2001, for instance, President George W. Bush issued an executive order giving a former president the ability to assert executive privilege without the consent of the sitting president. An executive order by then-President Barack Obama shifted decisions on executive privilege back to the sitting president. As president, Trump could have issued his own executive order, but he left Obama’s regulations intact.

The ABA Legal Fact Check points out the appeals court is fast-tracking consideration of the Trump case, making it more likely that the Supreme Court could render what could be a landmark decision on executive privilege in the coming months.

Related links

• What is executive privilege and a backgrounder on it in Lawfare
• Relevant court decisions:
  • Donald J. Trump v. Bennie Thompson, U.S. District Court, District of Columbia, Nov. 9, 2021
  • United States v. Nixon, U.S. Supreme Court, July 24, 1974
  • Nixon v. Administrator of General Services, U.S. Supreme Court, June 28, 1977
• Key legislative actions:
  • “Select Committee issues sweeping demand for executive branch records,” official media release
  • Presidential Recordings and Materials Preservation Act of 1974
    
  • Presidential Records Act of 1978
    
• ABA Journal:
  
  • “Trump suit says executive privilege can't be waived by Biden in Capitol records fight”