On January 19, the Supreme Court rejected former President Trump’s request to block release of some of his White House records to the Congressional January 6 Committee. In an 8-1 decision, the Supreme Court upheld the Court of Appeals’s decision authorizing release of the documents. The Court of Appeals ruled that the right to waive presidential executive privilege was held solely by the incumbent president but that Mr. Trump’s claims would have been invalid even if he still was in office. The Supreme Court stated, however, “Any discussion of the Court of Appeals concerning President Trump’s status as a former President must therefore be regarded as nonbinding dicta.”
Justice Brett Kavanaugh wrote a separate statement going even further. He disagrees with the Court of Appeals’s opinion regarding former presidents’ inability to invoke executive privilege. None of his colleagues, conservative or liberal, joined in his statement.
I agree with Justice Kavanaugh’s analysis. This post is based on confidentiality principles generally. It does not reflect any legal analysis of the doctrine of executive privilege.
Quoting the US v. Nixon case, Justice Kavanaugh describes the rationale for executive privilege: “[A] President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” He explains why there is an important interest in former presidents retaining some right to protect communications in their administrations:
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. … If Presidents and their advisers thought that the privilege’s protections would terminate at the end of the Presidency and that their privileged communications could be disclosed when the President left office (or were subject to the absolute control of a subsequent President who could be a political opponent of a former President), the consequences for the Presidency would be severe. Without sufficient assurances of continuing confidentiality, Presidents and their advisers would be chilled from engaging in the full and frank deliberations upon which effective discharge of the President’s duties depends. (emphasis in original)
Confidentiality is a fundamental principle embedded in legal and ethical rules governing lawyers and other dispute resolution professionals. The logic is the same as Justice Kavanaugh describes for presidential executive privilege. I’m no expert in evidence law, but I think that most privilege holders do not lose their rights when the relevant relationships end. For example, clients retain their attorney-client privilege after the legal representation ends. Terminating the privilege at the end of the representation would seriously undermine its purpose.
Presidential executive privilege is different from other privileges because it relates to a single office occupied by one incumbent at a time. Even so, Justice Kavanaugh correctly recognizes that precluding former presidents from having any right to invoke the privilege would undermine the rationale and benefits of the privilege. He suggests that former presidents might have reduced rights after they leave office. “[T]o say that a former President can invoke the privilege for Presidential communications that occurred during his Presidency does not mean that the privilege is absolute or cannot be overcome. … Moreover, it could be argued that the strength of a privilege claim should diminish to some extent as the years pass after a former President’s term in office.”
Democrats understandably applauded the decisions by the Supreme Court and lower courts. Preserving some rights of former presidents should be of particular interest to Democrats. As Justice Kavanaugh notes, if the Court of Appeals’s rationale would be upheld, privileged communications could be “subject to the absolute control of a subsequent President who could be a political opponent of a former President.” In the current situation, Mr. Trump could be re-elected and, given his grudges and impulses for revenge, (potentially former) President Biden should have some legitimate right to invoke executive privilege after leaving office.
This example illustrates the wisdom of Justice Kavanaugh’s analysis. If the Court consistently follows this approach, it would benefit both political parties when a president of their party is succeeded by a president of the other party.