House Democrats are using their January 6 inquisition to provoke a major court battle over executive privilege, multiple legal experts told The Federalist. At issue is whether a non-legislative congressional committee can pierce not just executive privilege, but also attorney-client privilege, of a former president, and grand jury secrecy requirements. While House Democrats have pushed the narrative to corporate media that it’s an open-and-shut case against former President Donald Trump, the reality is that many of the specific legal claims at issue have never been directly litigated or ruled on by the Supreme Court, while others have been decided in favor of those arguing for broader protection of records and communications covered by executive privilege, even for former presidents.
Democrats on the House’s January 6 investigative committee kicked off the fight last week by issuing a flurry of subpoenas of former Trump White House officials and then pushing a narrative to compliant corporate media that the decision of whether to recognize executive privilege belonged solely to current president Joe Biden. Democrat Rep. Jamie Raskin, for example, went so far as to claim, without evidence, that there is “no such thing as a former president’s executive privilege.” The goal of this push, insiders say, is to bully the Biden White House into abandoning its own institutional interest in protecting executive privilege by handing over every last record demanded by House Democrats.
However, significant legal and logistical obstacles will likely frustrate the Democrats’ plans to get their hands on Trump-era records and communications, legal experts deeply familiar with executive privilege litigation told The Federalist. The legal ground has been shaped primarily by the 1978 Presidential Records Act statute, which governs the mechanics of preserving and disseminating White House records, as well as three major Supreme Court cases: United States v. Nixon (1974), Nixon vs. GSA (1977), and Trump v. Mazars (2019).
The first case, often referred to as Nixon I, established the principle that in some cases the judiciary can pierce the veil of executive privilege to get access to certain presidential records. The second case, generally referred to as Nixon II, established that executive privilege does, in fact, apply to former presidents. In the Mazars case, which tackled the question of whether Congress had a right to demand certain presidential records, the Supreme Court significantly narrowed Congress’s ability to demand records by ruling that Congress must have a legitimate legislative justification for demanding presidential records irrespective of any claims of executive privilege.
The Presidential Records Act, which was originally passed in the wake of Nixon II and amended through the years, set the rules by which the National Archives and Records Administration, or NARA, manages all presidential records. This includes the collection, scanning, organization, and dissemination of records to various requesting parties, as well as certain time limits on the availability of presidential records. At the end of a presidential administration, NARA takes physical possession of all records, which are off-limits to the public for at least five years and potentially up to 12 years, and begins the Herculean process of scanning and organizing them for future access and research.
Under the normal process, NARA would receive requests for records, prepare a list of all the responsive records and their contents, and then pass those along to the current presidential administration and representatives for the administration whose records were being requested. Each side would then examine the records and provide a list of the records or information that they believe should be withheld under various claims of privilege (e.g., executive, deliberative process, attorney-client, and so on). In the event of a disagreement between the two parties, the current president would be left with the ultimate decision of what to withhold or divulge.
Logistical and Legal Hurdles
And that’s when the real legal fireworks would start, although there are also legal avenues that could be pursued ahead of any NARA action or presidential determinations on responsive documents. Once a presidential decision is made or NARA prepares to release records, legal representatives of the previous administration might also seek legal injunctions against NARA to prevent dissemination of the records as well as injunctions against the requesting party.
The biggest obstacle for House Democrats demanding expedited access to Trump’s records are as much logistical as they are legal, two insiders told The Federalist. For starters, the Biden White House doesn’t possess or control access to the documents, so even if it wanted to hand everything over to congressional Democrats, it would be physically impossible.
Next, because only eight months have passed since Trump left office, NARA simply hasn’t had enough time to do the monumental task of scanning and organizing all the documents, let alone querying the entire cache for responsive records and then distributing those to each party for required review. On top of that, the COVID-19 pandemic and government response to it has made a lengthy and tedious process even more difficult to complete given the shift to remote work.
And if the physical constraints weren’t big enough obstacles, the brewing legal fight will almost certainly have to go all the way up to the Supreme Court before the issue is ultimately solved. A big problem for House Democrats, one legal expert who has spent years working on privilege claims and litigation, is the Supreme Court ruling from Mazars that Congress must have a legitimate legislative purpose to justify demands for certain presidential records. In the case of House Democrats’ January 6 committee, there does not appear to be any legislative purpose for the records demands.
According to the committee’s own enabling resolution, which was passed by the House of Representatives in June of 2021, the purpose of the committee is purely investigatory. None of the three stated purposes mention legislation a single time. Instead, the language of the enabling resolution states that the purpose of the committee is to “investigate and report” the facts surrounding the January 6 riot, “examine” evidence collected, and to “build upon” other investigations.
The three stated functions of the committee, per the resolution, are to “investigate the facts” surrounding the riot, “identify” lessons learned, and “issue a final report” on the committee’s investigation. Not only does the enabling resolution not provide any legislative goals for the committee, it explicitly bans the committee from marking up any legislation whatsoever.
New Precedents Could Boomerang on Democrats
Only after the Mazars hurdle is overcome does the fight over executive and other similar privileges begin. The federal courts have never decided a case with the specific facts at issue, and it’s unclear how the Supreme Court would ultimately rule on executive privilege, even in light of its Mazars ruling. While previous courts ruled that a former president does retain executive privilege, they’ve also said it erodes over time and that the current administration’s view might carry more weight — especially if significant time has passed — than the view of the previous administration.
There are also significant questions not just about executive privilege, but about attorney-client privilege, deliberative process privilege, and even grand jury secrecy rules at play as a result of the Democrats’ demands for Trump-era records. And even after setting the aside the logistical and legal hurdles, there are also important political decisions for the Biden White House to make that do not lend themselves to simple partisan political rules, because any precedents set for Trump could come back to haunt Biden when Republicans start demanding records from his administration.
While it make sense that House Democrats would want to pitch the coming battle of Trump’s records as a fait accompli for Biden, the reality is much more complicated due to difficult political considerations, thorny legal issues, lengthy court battles, and even COVID-19 protocols. The attempt of congressional Democrats to bully Biden into doing their bidding notwithstanding, the latest subpoenas from House Democrats are only the beginning of a messy process that could take years to resolve.
Sean Davis is the co-founder of The Federalist.
Photo Official Whte House Photo by Joyce N. Boghosian