Legal Sidebari

Executive Privilege and the January 6
Investigations: The Presidential Records Act
and Relevant Judicial Considerations
September 20, 2021
As discussed in this companion Sidebar, a former President retains the right to invoke executive privilege
to protect covered communications that were made while in office. The strength of those protections,
however, erode over time and weaken further when not supported by the incumbent President. This
Sidebar first discusses how these basic principles are reflected in the Presidential Records Act (PRA) and
its implementing regulations, which set forth rules for the management and disclosure of a former
President’s records by the National Archives. The Sidebar then discusses how both the PRA and
constitutional considerations could be relevant to a brewing legal dispute between former President
Trump and the House Select Committee to Investigate the January 6th Attack on the United States Capitol
(Select Committee) over access to the former President’s records.
The PRA and the Role of the Incumbent President
Both a former President’s authority to invoke the presidential communications privilege and the
importance of the incumbent President’s position to that claim are underscored by the PRA. The PRA
establishes a statutory framework governing the retention and disclosure of presidential records. Under
the law, when any President leaves office his official records remain the property of the federal
government and are transferred to the National Archives. The PRA authorizes the outgoing President to
restrict access to various types of documents, including those that involve “confidential communications
... between the President and the President’s advisers,” for up to 12 years after leaving office, at which
point the records generally become publicly available. At the expiration of the restricted access period, the
law permits former Presidents, as well as the incumbent President, to invoke the presidential
communications privilege to prevent public disclosure.
The PRA establishes different rules for Congress, which is accorded special access to presidential records
held by the National Archives at any time after a President leaves office. If any congressional committee
requests presidential records on a “matter within its jurisdiction” that are “needed for the conduct of its
business and that is not otherwise available,” the law provides that the National Archives “shall” make the
records available. However, the provision also preserves the right of former Presidents to assert privilege
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claims by providing that disclosure is “subject to any rights, defenses, or privileges which the United
States or any agency or person may invoke.”
The language of the PRA was initially unclear on the question of what role an incumbent President plays
in a privilege assertion by a former President. As a result, different Presidents adopted different ways of
implementing the law through executive order. For example, President George W. Bush issued an
executive order instructing that “the Archivist shall not permit access to the records by a requester unless
and until ... the former President and the incumbent President agree to authorize access to the records or
until so ordered by a final and nonappealable court order.” President Barack Obama revoked that order,
and instead gave the Archivist discretion to determine whether to uphold a claim of privilege by a former
President. Congress eliminated this inconsistent treatment by amending the law in 2014 to give the
incumbent President final say, at least within the executive branch, as to whether the Archivist may
disclose the former President’s documents. Specifically, the law provides that if the incumbent President
does not uphold the former President’s privilege claim, the Archivist is directed—subject to a waiting
period—to release the record absent a court order directing the Archivist to do otherwise. The required
waiting period provides the former President with the opportunity to litigate the issue, and possibly obtain
such a court order.
The 2014 statutory alterations appear to apply only to public disclosures. The congressional access
provision was not amended. However, the National Archives has issued regulations governing
congressional requests; the regulations effectively mirror the 2014 changes and provide the incumbent
President with control over his Administration’s treatment of a former President’s records. Under the
regulations, “[i]f the incumbent President does not uphold the claim asserted by the former President ...
the Archivist discloses the presidential record 60 calendar days after the Archivist received notification of
the claim ... unless a court order in an action in any Federal court directs the Archivist to withhold the
record....” The regulations therefore create a default rule of release when the incumbent President does
not support a former President’s privilege claim, but provide the former President with the opportunity to
obtain a court order in order to block disclosure.
Legal and Judicial Considerations Specific to the January 6 Investigations
Although disputes over congressional access to records of former Presidents have arisen in the past, none
appear to have required resolution by the judiciary. In one prominent modern example, former President
Bill Clinton chose not to assert executive privilege during a House committee investigation into
controversial pardons made at the end of his Administration. The incumbent President, George W. Bush,
was less amenable to disclosing the former President Clinton’s internal pardon communications. Although
President Bush did not invoke executive privilege, his Administration withheld documents from the
committee, citing harm to the institutional interests of the presidency. Ultimately, further confrontation
appears to have been avoided when the National Archives inadvertently disclosed many of the documents
the White House had intended to withhold. The White House asked the committee to return those
documents, but that request was denied.
Any dispute involving Congress, President Biden, and former President Trump could be resolved through
negotiation and compromise rather than by resorting to litigation. However, as one federal district court
judge has expressed, “a former President’s incentives to accommodate Congress are greatly diminished
compared to those of an incumbent,” because a former President “no longer needs Congress’s help to
fund government or advance his policy priorities.”
Looking forward, there are various ways in which this nascent disagreement over congressional access to
Trump Administration records could make its way into court. Given the former President’s statements,
perhaps the most likely scenario (and with some resemblance to Trump v. Mazars) would be if former
President Trump sought a court order blocking the disclosure of those records, asserting they are protected

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by the presidential communications privilege, or perhaps some other applicable privilege. With respect to
presidential records in the possession of the National Archives, the PRA and its implementing regulations
require that a former President assert any “constitutionally based privilege against disclosing” a record
within 30 days of being given notice of the congressional request, and then explicitly provide the federal
courts with jurisdiction over an “action initiated by the former President asserting” a violation of “the
former President's rights or privileges.” It is also possible to see litigation initiated by a congressional
committee. If, for example, the Select Committee’s requests go unfulfilled, it could choose to issue a
subpoena to compel production. If that subpoena goes unanswered, it could then seek authorization from
the House to enforce its subpoena in court.
If the dispute reaches the judiciary, a court would likely have to navigate significant threshold questions
before reaching the merits. A reviewing court may also have to determine whether the records and
communications in question fall within the protective scope of the presidential communications privilege.
Do they, for example, relate to the President’s performance of the “responsibilities . . . of his office?” If
so, for those documents that are determined to be privileged, the court would likely apply some form of
balancing test (as the courts did in the cases discussed in this companion Sidebar) to determine whether
the congressional committee was able to make a sufficient showing of need to overcome the asserted
privilege.
In light of the principles discussed above, it appears that an important factor in any such balancing could
be whether President Biden supports the former President’s privilege claim. It is therefore significant that
President Biden has already signaled his reluctance to support the use of executive privilege to inhibit
ongoing House and Senate investigations of former President Trump’s attempts to use the Department of
Justice (DOJ) to overturn the results of the 2020 election. In recent letters sent to a number of former
Trump Administration officials who were asked to sit for transcribed interviews before House and Senate
committees, Attorney General Merrick Garland authorized the officials to “provide unrestricted testimony
to the committees, irrespective of potential privilege.” The Attorney General also stated that
President Biden has decided that it would not be appropriate to assert executive privilege with
respect to communications with former President Trump and his advisors and staff on matters
related to the scope of the Committees’ proposed interview, notwithstanding the view of former
President Trump’s counsel that executive privilege should be asserted to prevent testimony
regarding these communications.
The letters apply to testimony by the identified former officials and do not address presidential records or
the Select Committee’s investigation into the disruption of Congress’s counting of electoral votes on
January 6, 2021. The letters do not foreclose President Biden from concluding that executive privilege
may be appropriately invoked in other circumstances. Nevertheless, the letters conclude that the
“extraordinary events” running up to January 6—including efforts to “stop Congress’s count of the
Electoral College vote”—“constitute exceptional circumstances warranting an accommodation to
Congress.” The letters also note that the DOJ had previously authorized the officials to “provide
testimony about the Department’s planning or preparations for January 6, and the Department’s response
on the day of the attacks.” Given that prior authorization and the overlap between the ongoing 2020
election aftermath investigations and the events of January 6, it is possible, perhaps even likely, that
President Biden will extend his determination that it is inappropriate to invoke executive privilege to
address requests for information sought by the Select Committee. On the other hand, it is also possible
that President Biden (like President George W. Bush before) could determine that the potential harm to
the institutional interests of the presidency that may occur as a result of disclosing at least some of the
requested documents—for example, the most sensitive documents and testimony relating to internal
White House deliberations that directly involve the President—outweigh the Select Committee’s need in
a given case.

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In a scenario in which President Biden does not support a privilege claim by former President Trump, the
balancing that is the hallmark of executive privilege disputes would arguably tilt in Congress’s favor.
Nixon v. Administrator of General Services and Dellums v. Powell (discussed here) suggest that because
the incumbent President is “in the best position to assess the present and future needs of the Executive
Branch,” an assertion of executive privilege by former President Trump that is not supported by President
Biden would carry “diminished” weight. A reviewing court would also be faced with a situation in which
both Congress and the executive branch agree that the committee’s interests in obtaining the requested
records are substantial. The Attorney General’s letter dealing with the related investigations into attempts
to use the DOJ to overturn the 2020 election recognized that Congress had “compelling legislative
interests” and that “it is the Executive Branch’s view that the investigations into this presents an
exceptional situation in which the congressional need for information outweighs the Executive Branch’s
interest in maintaining confidentiality.” Moreover, with respect to the PRA documents, the Select
Committee would be requesting documents pursuant to specific statutory authority that has been
“approved through the bicameralism and presentment process”—a factor the DOJ recently gave
significance in an Office of Legal Counsel opinion relating to a congressional committee’s request for
President Trump’s tax returns.
Conclusion
The Supreme Court has made clear that former Presidents retain authority to invoke the presidential
communications privilege to protect covered communications from compelled disclosure. However, the
strength of such an assertion “erodes over time” and, in the case of a congressional request for
information, must be balanced against Congress’s investigative and legislative needs. In weighing the
competing interests at play, a privilege claim by a former President takes on a “diminished” character
when unsupported by the incumbent President. As a result, President Biden, by either supporting or
opposing any claim of executive privilege, may ultimately play an influential role in whether former
President Trump is able to prevent Congress from accessing his records related to his communications
while in office.


Author Information

Todd Garvey

Legislative Attorney




Disclaimer
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