Does Executive Privilege Apply to the Communications of a President-elect?
Legal Sidebari
Does Executive Privilege Apply to the
Communications of a President-elect?
March 8, 2018
Former White House Chief Strategist Stephen Bannon and outgoing White House Communications
Director Hope Hicks both appeared recently before closed-door meetings of the House Permanent Select
Committee on Intelligence as part of the Committee’s ongoing investigation into Russian involvement in
the 2016 election. According to reports, Mr. Bannon did not answer questions relating to the transition
period between the election and inauguration. Ms. Hicks answered “most,” but not all, of the Committee’s
questions relating to that time period. One threshold question that appears central to these reports is
whether executive privilege attaches to communications involving a President-elect prior to his
inauguration.
Executive privilege (or what is sometimes referred to by lower courts as the presidential communications
privilege) is a relatively nebulous, constitutional privilege that protects the confidentiality of presidential
communications on the grounds that “[a] President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so in a way many would be
unwilling to express except privately.” The Supreme Court’s only significant analysis of executive
privilege (privilege) comes from a pair of cases involving President Nixon’s unsuccessful attempts to
maintain control over his communications and records. In United States v. Nixon (Nixon I), the Court
rejected then-President Nixon’s attempts to quash a judicial subpoena issued at the request of a special
prosecutor for recordings of conversations the President had in the oval office with close advisors
regarding the Watergate break-in. In that case, the Court determined that “absent a [] need to protect
military, diplomatic, or sensitive national security secrets,” the President’s “generalized interest in
confidentiality” was outweighed by the “demonstrated, specific need for evidence in a pending criminal
trial.”
Three years later, after President Nixon had resigned, the Court again disagreed with the former
President’s broad conception of the privilege—this time in relation to the disposition of his records after
he left office. In Nixon v. GSA (Nixon II), the Court rejected Nixon’s challenge to the Presidential
Recordings and Materials Preservation Act, a statute that nullified an arrangement that gave the former
President control over his own presidential records and instead established a process to secure and
preserve Nixon’s records with the General Services Administration. Although the Court concluded that a
former President may assert the privilege over communications that occurred while in office, any ongoing
expectation of confidentiality was “subject to erosion over time….”
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Both opinions acknowledged the “legitimate governmental interest in the confidentiality of
communications between high government officials,” and specifically recognized the privilege as an
implied constitutional principle, derived from “the supremacy of the Executive Branch within its assigned
area of constitutional responsibilities” and “inextricably rooted in the separation of powers.” In addition,
however, the cases established two key limiting principles. First, the privilege is not “absolute” and must
be assessed in a manner that “preserves the essential functions of each branch.” Most claims of privilege,
therefore, require a balancing of the President’s need for confidentiality with either the judicial or
legislative branches’ need for the information sought. In Nixon I, the Court expressly abstained from
addressing the appropriate balancing if Congress (in the context of a congressional investigation) was
seeking the information rather than a prosecutor (in the context of a criminal case). The D.C. Circuit,
however, has held that in order to overcome the privilege, Congress would need to show that “the
subpoenaed evidence is demonstrably critical to the responsible fulfillment of the [investigating]
Committee’s functions.” Second, “the privilege is limited to communications ‘in performance of the
President’s responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making
decisions….’” Thus, not all presidential communications are protected.
Neither of the Nixon opinions had any reason to reference whether the privilege applies to
communications made prior to taking office. However, the opinions do suggest that the privilege attaches
to the “office” of the President, originating from the President’s Article II powers and protecting those
communications made in connection to the exercise of the powers of the Presidency. For example, in
Nixon I, the Court suggested that the privilege applies to communications made in the “discharge of a
President’s powers” or in the “performance” of the “responsibilities” of “his office.” In Nixon II, the
Court noted that although the protections of the privilege survive the end of a President’s term, it is “only
the incumbent [that] is charged with performance of the executive duty under the Constitution.” Other
lower courts have similarly viewed the privilege as “the President’s alone.” Similar reasoning has been
applied to other Presidential privileges. For example, in Clinton v. Jones, the Supreme Court did not
extend the protections of presidential immunity to acts taken before assuming office on the grounds that
such “unofficial acts” do not relate to the “performance of particular functions of [the President’s] office.”
The President-elect is not the President and does not exercise statutory or constitutional powers or
responsibilities of that office. This conclusion flows from the text of the Constitution itself, which vests
“[t]he executive Power” only in a single “President of the United States.” Moreover, the Constitution
prevents the President-elect from “enter[ing] on the Execution of his Office” until he has taken the
constitutionally required oath, which cannot occur until the expiration of his predecessor’s term on
January 20th, at which point the new President’s term “shall begin.” The only federal court to directly
address the privilege’s application to a President-elect (a Kansas district court) adopted this line of
reasoning, concluding that neither Nixon I nor Nixon II can be read to “extend the privilege to presidents-
elect.”
It is conceivable, however, that a court could apply a more functional analysis to extend aspects of the
privilege to a President-elect. This line of argument would likely stem from the fact that the Court has
viewed the privilege as protecting the “effectiveness of the executive decision-making process.” In Nixon
I, the Court explained that the privilege exists to ensure that the President and his advisors are “free to
explore alternatives in the process of shaping policies and making decisions” without fear of disclosure.
Similarly, in Nixon II, the Court suggested that the privilege encourages the “the full and frank
submissions of facts and opinions upon which effective discharge of his duties depends.” Numerous
important decisions occur during a transition, and indeed, advice provided to a President-elect may then
later serve as the basis for a decision made after assuming office. For example, a President-elect and his
transition staff typically engage in discussions and deliberations regarding appointments to be made once
the President-elect becomes the President. To the extent that protecting such communications is essential
to defend the “the public interest in candid, objective, and even blunt or harsh opinions in Presidential
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decisionmaking,” it could potentially be covered by the privilege. It should be noted, however, that no
court to date has ever adopted such a view.
Even if, for purposes of argument, the privilege is viewed as extending to certain
communications between a President-elect and his transition staff, it nevertheless would seem
arguable that the privilege may apply with less weight given that such an extension would appear
to lack the same direct grounding in the Constitution that characterizes the privilege for
incumbent Presidents. Courts have previously identified a variety of situations in which covered
communications receive diminished protections; for example, after significant time has passed,
when the incumbent president does not support the assertion of a former president, or where the
President has made public disclosures about the communications. If this reasoning were adopted,
it would likely influence the weight a reviewing court would accord to the President-elect’s
“confidentiality interests” when balancing those interests against Congress’s need for the
communications as part of a congressional investigation.
Author Information
Todd Garvey
Legislative Attorney
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