Statement on Former President Trump’s Claim of Executive Privilege

November 2, 2021

Statement by Members of Checks and Balances on Former President Trump’s Claim of Executive Privilege over Government Records Sought by The House Select Committee to Investigate the January 6th Attack on the United States Capitol:

Former President Trump has asserted a claim of executive privilege over government documents subpoenaed by the House Select Committee, and has now asked a federal court to issue a preliminary injunction blocking their imminent release. Many of us served during Republican Administrations at the Department of Justice or the Office of the Counsel to the President; in those capacities and others we have all worked on and studied the issue of executive privilege over many years. Under applicable Supreme Court precedent, Trump’s claim here is fatally weak and should be rejected by the Court, so that compliance with the subpoena can promptly proceed.

Executive privilege may be asserted only when necessary to serve the long-term interests of the Office of the Presidency. As the Supreme Court held more than 40 years ago in Nixon v. GSA, “only the incumbent is charged with performance of the executive duty under the Constitution,”  and the incumbent is “in the best position to assess the present and future needs of the Executive Branch.”  Here, President Biden has considered and rejected the former President’s claim.  President Biden’s determination that the interests of the Presidency and the country will best be served by complying with the subpoena rather than resisting it should be dispositive.

Moreover, the facts, conversations and documents at issue are not concerned with matters regarding the performance of a president’s responsibilities. The matters at hand are exclusively of a non-official character, and relate entirely to the prior President’s personal interests in maintaining political power and avoiding personal legal liability for political acts. As the Court acknowledged in Nixon v. GSA, a claim of executive privilege asserted by a former president against the determination of the Republic’s best interests by the incumbent president is inherently weak, and such a claim is wholly unavailable to the extent it concerns non-presidential duties or actions.

An incumbent President will have powerful reasons to support a predecessor’s claim when that claim is legitimate. Most fundamentally, all incumbent Presidents know that they will one day themselves be former Presidents. As Yogi Berra once advised when asked if he would be attending the funeral of an acquaintance, “Always go to other people’s funerals, otherwise they won’t come to yours.”

But whether the matter involves a current Administration or a prior one, a President’s prerogative to decline to assert (or to affirmatively waive) executive privilege is as important as the prerogative to claim it, because each type of decision requires a careful judgment about the country’s overall best interests. Past Presidents have waived potential privilege claims in order to assist investigations of, for example, Watergate, Iran-Contra, and the September 11 attacks. President Biden’s decision to provide Congress with documents which relate to a violent attack on the Capitol that sought to impede the peaceful transfer of power under our Constitution was soundly based and fully consistent with this history, and deserves respect.

Finally, given the manifest absence of legal merit in Trump’s privilege assertion, it is especially important that the litigation not become an instrument to delay the Select Committee’s important work. The Supreme Court has explained that “the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic.” President Biden’s determination that the interests of the nation warrant compliance with the subpoena weighs powerfully against granting Trump’s request for an injunction, and the former President’s personal interest in shielding himself from accountability, by contrast, is entitled to no weight.

  • Jonathan H. Adler
  • Donald B. Ayer
  • John B. Bellinger, III
  • Richard Bernstein
  • Phillip D. Brady
  • Travis Brown
  • George T. Conway, III
  • Mickey Edwards
  • Charles Fried
  • Stuart M. Gerson
  • John Giraudo
  • Peter D. Keisler
  • Edward J. Larson
  • Constance Morella
  • Michael S. Paulsen
  • Carter G. Phillips
  • Trevor Potter
  • Alan Charles Raul
  • Jonathan C. Rose
  • Paul Rosenzweig
  • Nicholas Rostow
  • Robert B. Shanks
  • Chistopher Shays
  • Michael Shepherd
  • Ilya Somin
  • Stan Twardy, Jr.
  • Christine Todd Whitman
  • Keith E. Whittington

Each of us speaks and acts solely in our individual capacities, and our views should not be attributed to any organization with which we may be affiliated.

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