The Senate Judiciary Committee and House Oversight and Reform Committee launched investigations earlier this year into allegations that former President Donald Trump improperly sought to use the resources of the U.S. Department of Justice to help him overturn the 2020 presidential election. According to the New York Times and Politico, the Department of Justice has now informed Trump administration witnesses that it does not support an assertion of executive privilege — in its presidential communications” and “deliberative process” components — on matters related to this nucleus of facts. As a result, the department has advised the witnesses that they may provide “unrestricted testimony.” (Update: the Department’s letters are now publicly available.)
This is a significant development that will clear the way for witnesses to provide evidence to the committees investigating post-election conduct, including the Jan. 6 attack on the Capitol. It also presents important questions for the doctrine of executive privilege in future cases.
Executive Privilege Analysis
Executive privilege is a contested doctrine in our separation-of-powers scheme, with Congress and the Department of Justice traditionally at loggerheads over its scope and application. In practice, executive privilege is an assertion of presidential authority to preserve executive branch confidentiality interests by withholding information from a judicial or congressional proceeding. The doctrine encompasses a bundle of components that cover a range of executive branch confidentiality interests, including presidential communications, deliberative processes, investigative integrity, state secrets, and individuals’ civil liberties that the administration may seek to shield from disclosure. Such claims can arise in legislative inquiries, criminal investigations, and civil litigation involving private parties, especially litigation arising under the Freedom of Information Act (FOIA).
The privilege is ultimately held by the sitting president, but subordinate executive branch officials — and former officials — regularly seek to preserve confidentiality interests that could be subject to a formal assertion of privilege.
Here, the Department of Justice concluded that it has a principled basis not to recommend an assertion of executive privilege in this matter that will be distinguishable from future information access disputes. My experience handling these issues in the White House Counsel’s Office suggests that if the Department of Justice has made this representation to the witnesses and their counsel, then that means both the Office of Legal Counsel and the White House attorneys have presumably signed off on this position. Indeed, the letter reportedly includes a notation that the department consulted with the White House Counsel’s office.
Based on the limited reporting to date, there appear to be several rationales at play.
First, the post-election machinations by President Trump and his allies, along with the January 6th attack on the U.S. Capitol, were sufficiently extraordinary events to warrant a departure from traditional executive branch practice. The quotation published in career Justice Department official Bradley Weinsheimer’s letter to prospective witnesses states, “[t]he extraordinary events in this matter constitute exceptional circumstances warranting an accommodation to Congress” that alleviate the post-employment confidentiality obligations of the witnesses who had worked for the department, including former Attorney General William Barr and Acting Attorney General Jeffrey Rosen.
Under principles of interbranch accommodation and compromise in privilege disputes, extraordinary circumstances have at times justified forbearance of an assertion of executive privilege, even over documents related to core executive branch confidentiality interests. The 9/11 Commission’s access to Presidential Daily Briefs (PDBs) of the most sensitive intelligence provided to a president are a good example of that kind of accommodation.
Second, the department appears to have determined that President Trump was likely acting in a personal capacity as a candidate for national office rather than as the nation’s chief executive. Weinsheimer’s letter suggests that the committees properly seek testimony about whether President Trump tried to enlist the Justice Department to further his “personal political interests” in overturning the results of the election.
There are several facts the department could rely on to demonstrate that this was a personal campaign project rather than a series of official acts. According to reports, two Attorneys General had informed President Trump that there was no merit to the allegations of massive, widespread voter fraud. In addition, President Trump reportedly raised concerns about only presidential election results, and not down-ballot races, and even then only concerns about states he needed to flip to win the electoral college tally. Finally, as observed by Chimène Keitner: “With respect to Trump, it might also be noteworthy that private attorneys, not White House Counsel, represented him in his second impeachment trial on January 13 for incitement of insurrection.” That is a conspicuous absence that is consistent with a determination that the conduct at issue was personal rather than official.
In addition, there were apparently multiple contacts that would violate the White House and Department of Justice contacts policies that prohibit applying improper political pressure on the investigative function of the Department of Justice. For example, documents provided by the Justice Department to Congress last month show that President Trump and his chief of staff Mark Meadows had numerous contacts with Acting Attorney General Rosen in efforts to get the department to back investigations and litigation that would challenge the election outcome. (The Biden administration just issued new, robust contacts policies in White House and Department memoranda.)
Both of these arguments — extraordinary circumstances and personal capacity — are designed to limit the precedential effect of this executive privilege waiver so that future presidential administrations will be able to protect legitimate executive branch confidentiality interests.
According to the Times, “Mr. Trump’s supporters have argued that a president cannot function if privilege can be taken away by a successor, exposing sensitive decision-making and opening up the previous administration to scrutiny.” That has simply not been the precedent. While executive privilege doctrine covers the official conduct of prior administrations and former presidents have a residual interest in those privileges, the current president, in consultation with the Office of Legal Counsel at the Department of Justice, determines whether to assert privilege in a given matter. The current administration has the responsibility to make these decisions. That was true during the Senate investigation into Bush-era detention and interrogation programs that had to be managed by the Obama administration (depicted in the movie The Report) and it was true for the Trump administration litigation settlement and document releases related to the Obama-era investigation into the problematic gun trafficking investigation Operation Fast and Furious. (I encountered both matters in the Obama White House Counsel’s Office.)
Together, these facts paint a picture that, to the department, President Trump was acting as a candidate for reelection — his “personal political interests” — rather than the head of government.
Effect on Witnesses, Committees, Executive Immunity, and Presidential Administrations
This determination by the Department of Justice will have a number of effects, ranging from the immediate to the long term.
Witnesses called by congressional committees now have lost a legal impediment and political argument to resist testimony. Witnesses who are inclined to testify may use the department’s letter as a permission structure to testify. Other witnesses may seek to continue to resist in line with President Trump’s wishes, potentially seeking judicial protection by commencing litigation. As the Times speculates, the former president may also seek court relief. Either way, the investigating committees will be emboldened to press forward, with subpoenas if necessary. The letter not only shapes the legal landscape — no department assertion of privilege in any related court case — it also shapes the politics of the dispute. It is harder to argue that executive privilege applies without the department’s backing.
This position by the department also raises interesting questions about whether executive branch immunity will shield those involved in these issues from other potential legal liabilities. If the Department of Justice has concluded that White House officials who contacted the department seeking its involvement in the election controversy were acting in a personal capacity, it could have profound effects in related litigation (such as the civil lawsuit brought by Capitol Police officers against President Trump and one by Rep. Eric Swalwell (D-CA) against President Trump and Rep. Mo Brooks (R-AL) and others).
Finally, there is the question of the effect of this disposition on the current and future presidential administrations. The department’s determination in this case to allow unrestricted testimony will now be part of the executive privilege canon, and can be invoked in the legal and political arguments in subsequent interbranch disputes. However, by all appearances, the Department of Justice has diligently established the principled basis it will use to distinguish this extraordinary series of events from future information access disputes between the two ends of Pennsylvania Avenue.