As you have no doubt heard, the former guy is now filing the suit seeking to block the National Archives from giving Trump Administration records to the House Select Committee investigating 1/6. No surprise here; the surprise is it took him that long to get to court. (And I guess he has at least halfway decent counsel, as he’s arguing that his executive privilege does not end upon a change of administration, rather than arguing that he’s actually still the President and thus he, and not Joe Biden, is the one with the right to do so. So he’s admitting he lost. Progress I guess. But a digression from the main point).
When this matter came up, I actually was—at first—a bit skeptical as to whether Biden could waive executive privilege claims concerning the Trump Administration. After all, if you divulge things to a lawyer as part of receiving legal advice, and then you end your relationship with that lawyer, you are still protected by attorney-client privilege. (This includes advice received and exchanged, whether transcribed or not, as well as written attorney work product). There is no “no longer your lawyer” exemption; the privilege protects a defendant for life so long as the necessary conditions are meant. (More on that in a bit).
But then, after thinking it over, I’ve come to the conclusion that Trump and his defenders are way off base here. For two reasons:
1. The records don’t belong to Trump.
The argument is being made that the “privilege” belongs to the White House, instead of the President in his personal capacity; but that’s focusing on the wrong thing. Instead, the question is who is the proper custodian of the records, and recipient of the privileged advice, and that’s clearly the office of the Presidency. Trump, personally, is not being asked (at this time) to produce anything or do anything by the Committee; instead he is a third party to this case, seeking to intervene in a records request from the House Committee to the National Archives.
Now consider a different case: A corrupt executive is fired from a corporation, and investigated by the law for crimes committed during his tenure there. The new management chooses to cooperate with the investigators, and responds to a subpoena for conversations between said CEO and corporate legal counsel on relevant matters. Executive sues to quash, claiming attorney-client privilege. Assume the material in question otherwise qualifies for the privilege (was not needlessly disclosed to anyone but principals and counsel, and was in the context of seeking advice).
His motion would be almost certainly denied. Why? Not his records, not his attorney. In seeking advice from the company lawyers on what is presumably a company matter, he is acting on behalf of the corporation, and the corporation is the client. Not the ex-CEO, personally.
Same thing with Trump. While executive privilege is different; the purpose of the privilege is to protect the office of the presidency from unwanted political intrusion from the legislative branch, not to protect the person of the President from investigation into corrupt behavior. These are not Trump’s personal advisors, they are the advisors to the President of the US, and that’s no longer Trump.
2. Executive privilege is limited.
In our system of laws, it is generally assumed that in a legal dispute, parties in a lawsuit (having made sufficient pleadings to show there is a case to answer for and they’re not merely engaging in a fishing expedition) have the right to discovery. While a congressional inquiry is not quite the same, it is close enough that many of the same arguments apply. To overcome that right and protect secret information, there are various privileges that exist, and apply in very limited circumstances. Attorney-client privilege is the most well-known and subject to the most legal precedent as to its scope, and springs from the belief that everyone deserves frank advice from counsel, without fear that one’s lawyer will be subpoenaed by investigators.
For attorney-client privilege to apply, the following must hold (swiped from Wikipedia):
Although there are minor variations, the elements necessary to establish the attorney–client privilege generally are:
- The asserted holder of the privilege is (or sought to become) a client; and
- The person to whom the communication was made:
- is a member of the bar of a court, or a subordinate of such a member, and
- in connection with this communication, is acting as an attorney; and
- The communication was for the purpose of securing legal advice.[4]
There are a number of exceptions to the privilege in most jurisdictions, chief among them:
- the communication was made in the presence of individuals who were neither attorney nor client, or was disclosed to such individuals,
- the communication was made for the purpose of committing a crime or tort,
- the client has waived the privilege (for example by publicly disclosing the communication).
Executive privilege exists to protect the interests of the executive in political struggles with the Legislature using its investigative powers. Like attorney-client privilege, it does not exist to enable and protect conspiracy by the President and his advisors, but for the limited purpose of obtaining fair and frank political advice from officers of the government who are appointed for that purpose. And it exists to protect the executive from political acts, such as impeachment or censure, not to protect the person in the office from legal investigation into wrongdoing.
Note that in the corporate world, there is no similar concept as executive privilege; no company can shield the conversations between the CEO and his or subordinates (various vice-presidents, the CFO, whoever) on the grounds that the CEO cannot receive frank advice otherwise. Executive privilege is a political privilege, not a legal privilege.
And as a political privilege, it only should apply when a political proceeding against the executive is likely or underway. As Trump is out of office, he can (probably) no longer be impeached; at least that was the consensus set by his second impeachment trial. Since he is immune from retaliation by the House, he lacks standing.
(Finally, it should be noted that he likely never had any basis to claim executive privilege with regard to any conversations with Steve Bannon, who never was part of the government in any legal capacity, let alone a Cabinet officer or other confirmed official.)