Executive Privilege and Former Presidents: Constitutional Principles and Current Application
Legal Sidebari
Executive Privilege and Former Presidents:
Constitutional Principles and Current
Application
September 20, 2021
A number of congressional committees, including the newly created House Select Committee to
Investigate the January 6th Attack on the United States Capitol (Select Committee), are currently
investigating issues associated with the events of January 6, 2021. The Select Committee, which has
suggested that it will conduct an inquiry that includes scrutinizing the actions of then-President Donald
Trump, recently announced it was seeking a variety of relevant documents from the National Archives
and Records Administration (National Archives) and other executive branch agencies. These initial
requests included demands for Trump Administration documents, including “communications within and
among the White House and Executive Branch agencies during the leadup to January 6th and on that
day.” Signaling a possible legal confrontation, former President Trump responded to that announcement
by asserting that the Select Committee’s requests were “being performed at the expense of long-standing
legal principles of privilege,” and that “Executive privilege will be defended.”
This apparently brewing dispute over congressional access to evidence of former President Trump’s
actions and direct communications appears to implicate the presidential communications privilege, a
particular component of what is often referred to as executive privilege. As a result, the Select
Committee’s investigation is likely to raise both constitutional questions of a former President’s authority
to use executive privilege to shield from Congress communications he made while in office, and statutory
questions arising from the Presidential Records Act (PRA) and its treatment of congressional access to
presidential records possessed by the National Archives.
This Sidebar addresses the general legal principles governing these questions. It provides an overview of
executive privilege and its application to claims by former Presidents in the context of a congressional
investigation. It also highlights the significant weight given to the views of the incumbent President by
courts when they consider privilege claims raised by a former President. A companion Sidebar addresses
the treatment of executive privilege claims by a former President under the PRA and outlines judicial and
legal considerations specific to the January 6 investigations. Ultimately, and as discussed in both
Sidebars, it appears that an important factor in how this dispute unfolds is likely to be whether the current
President supports the former President’s potential privilege claim.
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Executive Privilege and Congressional Investigations
Executive privilege is a term that has been used to describe the President’s prerogative to “resist
disclosure of information the confidentiality of which [is] crucial to fulfillment of the unique role and
responsibilities of the executive branch of our government.” However, there is not a single “executive
privilege.” Instead, there exists a suite of distinct executive privileges that protect different types of
executive branch communications. These privileges generally arise from different sources of law, apply
with different strengths, and, in the congressional context, are balanced against Congress’s Article I
powers in different ways.
At least some of the Select Committee’s demands for Trump-era White House documents appear to
implicate one of the stronger executive privileges known as the presidential communications privilege.
The Supreme Court has established that this privilege derives from a combination of the constitutional
separation of powers and the President’s Article II prerogatives. It protects presidential communications
and records produced “in performance of [a President’s] responsibilities . . . of his office . . . and made in
the process of shaping policies and making decisions. . . .” The privilege covers both communications
directly involving the President and those made by close presidential advisors for purposes of assisting
the President in his constitutional functions. By ensuring a degree of privacy for presidential
deliberations, the presidential communications privilege seeks to encourage informed presidential
decisionmaking. The Supreme Court has reasoned that the importance of maintaining the confidentiality
of communications between the President and those who advise him is “plain,” as “[h]uman experience
teaches that those who expect public dissemination of their remarks may well temper candor with a
concern for appearances and for their own interests to the detriment of the decisionmaking process.”
Any discussion of the application of the presidential communications privilege generally revolves around
the seminal 1974 Supreme Court case United States v. Nixon (Nixon). In that case, President Richard
Nixon sought to quash a judicial trial 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. The Nixon Court acknowledged the existence of a presidential communications privilege, but
concluded that the privilege was not “absolute,” as President Nixon had argued. The privilege could
instead be overcome in certain circumstances by the party seeking the information. In what is now the
hallmark of executive privilege disputes, the Court proceeded to balance the competing interests of
confidentiality and disclosure, holding that the President’s “generalized interest in confidentiality” was
outweighed by the “demonstrated, specific need for evidence in a pending criminal trial.” The Court
therefore ordered that the tapes be delivered to the district court for in camera review.
The Nixon Court expressly abstained from addressing how a reviewing court should weigh a claim of
executive privilege if Congress, rather than a prosecutor, were seeking the disclosure of presumptively
privileged communications. A few months before Nixon was decided, however, the U.S. Court of Appeals
for the D.C. Circuit (D.C. Circuit), engaged in such an analysis in Senate Select Committee on
Presidential Campaign Activities v. Nixon (Senate Select), a lawsuit stemming from a congressional
committee’s attempt to obtain the Nixon tapes. There, the court balanced Congress’s investigative and
legislative functions against the President’s interest in confidentiality, and determined that the
congressional need was insufficient to overcome the privilege. The appeals court held that in order to
obtain privileged presidential communications, Congress would need to show that “the subpoenaed
evidence is demonstrably critical to the responsible fulfillment of the Committee’s functions.” The
committee attempted to make that showing by arguing it had a “critical” need for the tapes in carrying out
both its oversight and legislative functions. The court, however, determined that the committee failed to
make the requisite showing—principally on the grounds that President Nixon had released written
transcripts of the tapes and the House Judiciary Committee, in the conduct of its own impeachment
inquiry, had already obtained the tapes.
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Executive Privilege and Former Presidents
Nixon and Senate Select establish that there is a privilege protecting presidential communications that is
based in the Constitution and can be asserted against Congress, but that privilege can also be overcome by
a sufficient showing of need, including by an investigating congressional committee. However, neither
case addressed whether the presidential communications privilege or other executive privileges can be
asserted by a former President, and if so, how such an assertion should be balanced against Congress’s
investigative interests.
Although no court appears to have directly considered the latter question, the former was addressed in the
1977 case of Nixon v. Administrator of General Services (Nixon II). In that case, the Supreme Court
determined that the protections of the presidential communications privilege survive beyond the
conclusion of the presidential administration within which they occur and may be asserted by a former
President. Nixon II involved a challenge brought by former-President Nixon to the Presidential
Recordings and Materials Preservation Act, a records disposition law enacted shortly after President
Nixon’s resignation, and a precursor to the PRA. In upholding the law, the Court concluded that a former
President may “legitimately” assert the privilege to prevent disclosure of his official records after he has
left office. In reaching that conclusion, the Court reasoned that the confidentiality necessary to ensure the
free exchange of ideas between the President and his advisors
cannot be measured by the few months or years between the submission of the information and the
end of the President’s tenure; the privilege is not for the benefit of the President as an individual,
but for the benefit of the Republic. Therefore the privilege survives the individual President’s tenure.
The Court’s determination appears to have rested on the reasoning that the general purpose of the
presidential communications privilege—that the confidentiality of presidential decisionmaking is
necessary to ensure the provision of frank advice to the President—could be threatened or undermined
regardless of when the disclosure of the covered communications occurs. However, Nixon II distinguished
former Presidents from incumbents in two important ways. First, the Court explicitly stated that “to the
extent that the privilege serves as a shield for executive officials against burdensome requests for
information which might interfere with the proper performance of their duties, a former President is in
less need of it than an incumbent.” Second, the Court concluded that the “expectation of the
confidentiality of executive communications [is]... subject to erosion over time after an administration
leaves office.”
This constitutional distinction between incumbent and former Presidents was recently emphasized by a
federal district court in the latest chapter of Trump v. Mazars. Mazars began when then-President Trump
sued to block his financial and accounting firms from complying with various House committee
subpoenas for his personal financial records. Lower courts upheld the subpoenas, but the Supreme Court
reversed in 2020 when it announced a nonexhaustive four-part test for evaluating congressional
subpoenas for certain presidential documents. That test (discussed in detail here) stemmed directly from
the “weighty concerns regarding the separation of powers” that arise from such a subpoena.
The case was remanded to the lower courts to apply the new test. In the meantime, however, President
Trump left office, which forced the district court to consider how and whether the Mazars test would
apply to a congressional subpoena for the personal documents of a former President. In doing so, the
district court acknowledged that “separation of powers considerations do not entirely disappear merely
because the entanglement is between Congress and a former President” but ultimately concluded that any
separation of powers worries were “less substantial when a former President is involved.” As a result, the
court applied “reduced judicial scrutiny” through what it called the “Mazars lite” test and ultimately
concluded that some of the committees’ asserted investigative purposes were adequate to obtain the
President’s records. The case has been appealed to the D.C. Circuit.
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Importance of the Incumbent President’s Views
Nixon II therefore establishes the framework for considering executive privilege claims by former
Presidents. That case identified another important factor that can further diminish the strength of a former
President’s privilege claim: whether the incumbent President supports the former President’s position.
According to Nixon II, the fact that President Carter—the sitting President at the time—did not support
Nixon’s privilege claim “detract[ed] from the weight of” Nixon’s argument because it “must be presumed
that the incumbent President is vitally concerned with and in the best position to assess the present and
future needs of the Executive Branch, and to support invocation of the privilege accordingly.” In the
Court’s view, it is the incumbent President that is better situated to make determinations about the need
for executive confidentiality, because it is the incumbent President who may suffer the harm that the
privilege purports to protect against if privileged documents were disclosed (namely that current advisors
would be dissuaded from giving the incumbent President candid advice). As a consequence, when a
former President’s privilege claim does not receive the support of the incumbent President, the strength of
the claim declines.
This principle can be seen in a D.C. Circuit case, Dellums v. Powell, decided just before Nixon II. Dellums
involved a civil discovery subpoena for tapes and transcripts of former President Nixon’s conversations
regarding the 1971 May Day demonstrations. In deciding the case, the court directly addressed a privilege
claim by a former President that was not affirmatively supported by the incumbent President. The court
concluded that “the significance of the assertion by a former President is diminished when the succeeding
president does not assert that the document is of the kind whose nondisclosure is necessary to the
protection of the presidential office and its ongoing operation.” That lack of support from the incumbent
does not necessarily defeat the former President’s claim, the court reasoned, but rather was of “cardinal
significance” in considering “whether the claim is overcome by a showing of other need....” The result of
Nixon II and Dellums is that while a former President has authority to invoke the presidential
communications privilege, the strength of that claim—and the likelihood that the asserted interest in
confidentiality will succumb to the need shown by the party seeking the documents—is heavily
influenced by the position of the current President.
This Sidebar covers the basic constitutional principles governing claims of executive privilege by former
Presidents. A companion Sidebar turns to the PRA—the federal law governing the disclosure of
presidential records held by the National Archives—before presenting a selection of legal considerations
specific to the January 6 investigations.
Author Information
Todd Garvey
Legislative Attorney
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