Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In Nixon II, the Supreme Court determined that the Communications Privilege continues to protect presidential communications after the conclusion of the Administration within which the communication occurred and may be asserted by the former President.1 As described above, the Court found that a former President may “legitimately” assert the Communications Privilege to prevent disclosure of his official records after he has left office.2 The Court reasoned that the confidentiality necessary to ensure the free exchange of ideas between the President and his advisers while the President is in office

The Court’s determination appears to have rested on the reasoning that the general purpose of the Communications Privilege—ensuring the provision of frank advice to the President—could be threatened or undermined no matter when the disclosure of the covered communications occurs. Nixon II distinguished former Presidents from incumbents in three important ways. First, the Court explicitly stated that “to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, a former President is in less need of it than an incumbent.” 4 Second, the Court concluded that the “expectation of the confidentiality of executive communications” is “subject to erosion over time after an administration leaves office.” 5 Thus, the strength of a former President’s Communications Privilege claim appears to dwindle as time passes.

Third and perhaps most importantly, the Court determined that because only the sitting President is “charged with performance of executive duty under the Constitution,” he is “in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” 6 In Nixon II, the fact that President Carte—the sitting President at the time—did not support former President Nixon’s privilege claim “detract[ed] from the weight of” Nixon’s assertion.7 In the Court’s view, it is the incumbent President who is better situated to make determinations about the need for executive confidentiality, because it is the incumbent President who may suffer the harm that the Communications Privilege purports to protect against if privileged documents were disclosed (namely that current advisers would be dissuaded from giving the incumbent President candid advice).8 As a result, when the incumbent President does not support a former President’s privilege claim, the strength of the claim declines.

The importance of the incumbent’s concurrence to a privilege claim by a former President was recently reaffirmed in Trump v. Thompson.9 Thompson arose from the inquiry conducted by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Select Committee). As part of its investigation, the Select Committee requested that the National Archives and Records Administration (NARA) produce relevant presidential records from the former Trump Administration pursuant to the Presidential Records Act (PRA).10 The request sought various categories of White House communications and documents created on or around January 6, 2021. Under the PRA, if any congressional committee requests a presidential record on a “matter within its jurisdiction” that is “needed for the conduct of its business and that is not otherwise available,” the National Archives “shall” make the record available.11 However, consistent with principles established in Nixon and Nixon II, the PRA also preserves the right of both current and former Presidents to assert privilege claims by providing that disclosure by NARA is “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke.” 12

Shortly thereafter, President Joseph Biden determined that under the “unique and extraordinary circumstances” and because of Congress’s “compelling need” to understand the “horrific events” of January 6, asserting executive privilege over the requested documents would not be “in the best interests of the United States.” 13 Former President Trump disagreed and notified the Archivist that he was asserting the Communications Privilege. After President Biden clarified that he would “not uphold the former President’s assertion of Privilege,” former President Trump filed suit in federal district court to block NARA from disclosing privileged documents to the Select Committee.14

The D.C. District Court in Thompson viewed the case as “a dispute between a former and incumbent President.” 15 Citing to Nixon II, the court stated that because the incumbent President is “best suited” to identify and determine the best interests of the Executive Branch, former President Trump’s Privilege claim was “outweighed by President Biden’s decision not to uphold the Privilege.” 16 Moreover, the court reasoned that to side with the former President would not only second guess the sitting President’s judgment, but also the Legislative Branch’s judgment—for both President Biden and the House agreed that the requested documents should be disclosed.17

The D.C. Circuit affirmed the district court decision on appeal. The court acknowledged, with reference to Nixon II, that there was “no question” that former President Trump could assert the Communications Privilege and that the Communications Privilege was “of constitutional stature.” 18 Nevertheless, the court held that a “rare and formidable alignment of [three] factors” supported disclosure of the documents to the Committee and outweighed the former President’s interest in confidentiality.19

First, the court stated that President Biden’s determination that it was neither in the Executive Branch’s nor the public’s interest to assert Privilege over the requested documents “carries immense weight in overcoming the former President’s” claim.20 Consistent with previous case law, the court viewed President Biden as “the principal holder and keeper of executive privilege” and the judiciary as “ill equipped to . . . second guess the expert judgment of the sitting President.” 21

Second, the House had a “uniquely weighty interest in investigating the causes and circumstances” of the January 6 attack on the U.S. Capitol.22 Indeed, the court noted that having presented a “sound factual predicate” for the requested documents, “there would seem to be few, if any, more imperative interests squarely within Congress’s wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business.” 23

Third, and “weighing still more heavily” against former President Trump, was “the fact that the judgment of the Political Branches is unified as to these particular documents.” 24 The court was unwilling to “needlessly disturb ‘the compromises and working arrangements that” the Congress and the President had already reached.25

In light of these three factors, the D.C. Circuit held that “the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed [former President Trump’s] generalized concerns for Executive Branch confidentiality.” 26 That holding was given added significance by the court’s determination that it would have been compelled to reach that conclusion “under any of the tests advocated by former President Trump,” including the “demonstrated, specific need” standard from Nixon or the “demonstrably critical” standard from Senate Select.27 As such, it appears the Select Committee would have been able to overcome the Communications Privilege in this circumstance even if President Biden had supported former President Trump’s Privilege claim.

The Supreme Court picked up on this point in denying former President Trump’s petition to stay the D.C. Circuit decision.28 In interpreting the opinion below, the Supreme Court—in an unsigned order—reasoned that Mr. Trump’s “status as a former President [ ] made no difference to the court’s decision” since the D.C. Circuit had “concluded that President Trump’s claims would have failed even if he were an incumbent.” 29 Because the former President’s assertion of privilege would have been unsuccessful either way, the Court declared the D.C. Circuit’s discussion of when executive privilege claims could properly be asserted by former Presidents to be nonbinding dictum.30

Footnotes

1

Nixon v. Adm’r of Gen. Servs. (Nixon II), 433 U.S. 425, 446-49 (1977).

2

Id. at 449.

3

Id. (citations omitted).

4

Id. at 448.

5

Id. at 451.

6

Id. at 449.

7

Id., at 449.

8

Id.

9

Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021), cert. denied, No. 21A272 (U.S. Jan. 20, 2022).

10

Id. at 16.

11

44 U.S.C. § 2205(2)(C).

12

Id. at § 2205(2).

13

Thompson, 20 F.4th at 20–21.

14

Id. at 21–22.

15

Trump v. Thompson, 573 F. Supp. 3d 1, 26 (D.D.C. 2021).

16

Id. at 29.

17

Id. at 27–29.

18

Thompson, 20 F. 4th at 32.

19

Id. at 33.

20

Id.

21

Id. at 35.

22

Id.

23

Id. at 35–36.

24

Id., at 37.

25

Id. at 38 (quoting Trump v. Mazars USA, LLP, No. 19-715 (U.S. May 12, 2020)).

26

Id. at 33.

27

Id. at 41 ( “The legislative interest at stake passes muster under any of the tests pressed by former President Trump.” ).

28

Trump v. Thompson, No. 21A272 (U.S. Jan. 20, 2022). The Supreme Court later denied certiorari. No. 21A272 (U.S. Jan. 20, 2022).

29

Id. Justice Clarence Thomas would have granted the former President’s application. Justice Brett Kavanaugh authored a concurrence to clarify his position that “[a] former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency.” Id. (Kavanaugh, J., concurring). Once invoked, it appears to be Justice Kavanaugh’s view that the tests from Nixon and Senate Select “may apply to a former President’s privilege claim as they do to a current President’s privilege claim.” Id.

30

Id..