September 12, 2022 | Reading Time: 4 minutes

The former guy has no claim to the current executive’s privilege

In a privilege fight between a sitting president and a former guy merely defending himself, the former guy should lose every time. 


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Judge Aileen Cannon stopped a criminal investigation by ordering a special master to review documents seized from Mar-a-Lago. 

This court-appointed official will probably be charged with reviewing the seized materials to see if they are protected by executive privilege. 

It’s unclear who that official will be, what criteria they will use or how long this process will take. The judge’s ruling is a gift to Trump. 

Faced with overwhelming evidence of their client’s guilt, his lawyers can only hope to drag the process out as long as possible. 

Judge Aileen Cannon’s decision to freeze the Justice Department’s criminal investigation to check for executive privilege is frivolous. 

On Thursday, the feds asked the judge to let them keep working with only the classified documents, because those couldn’t possibly be privileged. 

Asking for a subset of the documents was a savvy tactical choice by the feds. But it’s obvious that Donald Trump has no claim to executive privilege over any of the documents seized from Mar-a-Lago. 

The Supreme Court ruled unanimously that Richard Nixon had to turn over the White House tapes to the special prosecutor who had indicted seven of Nixon’s closest aides in the Watergate investigation.

Nixon’s lawyers argued that the president’s Oval Office conversations were off-limits. Advisors need privacy in order to give candid advice, they said.

But Chief Justice Warren Burger’s majority opinion held that Nixon’s demand for privacy “[could not] prevail over the fundamental demands of due process of law.” The tapes were handed over. Nixon resigned shortly thereafter, leaving behind millions of pages of presidential records and hundreds of hours of tape recordings. 

This case established not only that a president’s assertion of privilege could be tested in court, but also that the government’s need for evidence in a criminal case outweighs the president’s need for privacy. 

The parallels to Trump’s situation are obvious. 

If anything, Trump is in a weaker position than Nixon was in, because he’s the former president, and he’s the one facing indictment. 

After Watergate, Congress passed a law that made presidential records public property and tasked the General Services Administration (GSA) with archiving them for posterity. 

Nixon sued for control, again citing privilege. Justices rejected the claim by a vote of 7-2, noting that, since the doctrine of executive privilege is based on the separation of powers, Nixon couldn’t invoke it to thwart the GSA, which is also part of the executive branch. 

The Department of Justice cited this precedent in Trump’s case. Trump is trying to invoke executive privilege against the DOJ, which is, like the GSA, part of the executive branch. Evidently, Judge Aileen Cannon ignored this seemingly decisive objection in her ruling. 

It’s unclear whether a former president can ever claim executive privilege, let alone whether he can overrule a sitting president in a privilege fight. 

Executive privilege is supposed to further the public good through the smooth operation of government. Privilege exists to protect the executive branch’s ability to fulfill its core constitutional functions. It’s not a perk for the office-holder. 

A sitting president has core constitutional functions to uphold, like safeguarding national security and upholding the rule of law. A former president has no constitutional function whatsoever. 

In a privilege fight between a sitting president and a former guy merely defending himself, the former guy should lose every time. 

One of the bedrock principles of our democracy is that powers and privileges are vested in the office of the president, not in the person. 

That makes it difficult to see how a former president, who is (legally speaking) just some guy, could wield executive privilege, let alone privilege strong enough to overrule that of the sitting president. 

Proponents of executive privilege for former presidents have to resort to pretzel logic to explain why some guy should be able to overrule the sitting president of the United States: The former president has executive privilege, they say, because every current president is a future former president. The current president won’t be able to get good advice if his advisors are afraid that their deliberations could be made public by a future president. 

The Supreme Court recently dodged the question of former-guy privilege. A lower court ruled that Trump must hand over documents to the J6 committee. Trump tried to invoke executive privilege, even though actual President Biden waived his actual privilege.

The lower court ruled that Congress’s claim was so strong that Trump wouldn’t have been able to invoke executive privilege even if he had been president. The Supreme Court refused to hear the case. Eight of the nine justices denied Trump’s motion to block NARA from handing over the documents, which now reside with the J6 committee. 

Judge Cannon’s decision to freeze a criminal investigation to check for executive privilege is frivolous. It’s doubtful that former president Trump has executive privilege at all, but even if he did, the Supreme Court held unanimously that executive privilege must yield to the demands of an active federal criminal investigation. 

Moreover, executive privilege can’t be wielded by one part of the executive branch against another. So, executive privilege would not justify withholding information from the Department of Justice.

Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.

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