Last week Professor Saikrishna Prakash shared an opinion in the Washington Post, entitled “Trump is right: Former presidents can assert executive privilege.” While the piece spends a lot of time discussing the nature of executive privilege and its use since George Washington, the core of the argument is thus:

Indeed, the Supreme Court has clearly stated that a former president can assert executive privilege. It did so in a sequel to the Watergate-tapes case, Nixon v. General Services Administration (1977), in which … [t]he court wrote: “We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former president, may also be heard to assert them.”

This assertion, however, is incorrect. And it reflects a basic misconception shared by many lawyers and policymakers about that seminal case, Nixon v. GSA.

This issue has been brought to the fore in the litigation brought by former President Trump to block the release of White House records. In fact, even the defendants in this case seem to be under the general impression that a former president can assert executive privilege, while maintaining that this former president cannot in this particular situation. With one exception, the Archivist and the January 6 Committee focus on the balancing test established by the Supreme Court in Nixon v. GSA, arguing that the Committee’s demonstrated need outweighs former President Trump’s interest in withholding them. The only indication that this might be the wrong question can be found in a footnote in the Committee’s brief:

“The Select Committee maintains, for preservation purposes, that the Constitution and the PRA foreclose a former President from asserting executive privilege over the disagreement of the incumbent President, and foreclose a claim of executive privilege to thwart a Congressional request. To rule in the Select Committee’s favor, however, this Court need not decide those issues.”

However, that very argument is the one the court should be adjudicating. It is for this reason that we, along with several scholars in executive privilege and the Presidential Records Act, wrote an amici curiae brief in this case, taking a position that even the defendants were not fully arguing.

There are three key reasons for this misconception. The first lies in the basic fact that the legal landscape in 2021 is different than the legal landscape in 1977. When the Supreme Court was adjudicating Nixon v. GSA, the Presidential Records Act did not exist yet. The Act now does exist, and it explicitly provides the incumbent president the decisive authority over whether the privilege will be asserted for the executive branch. Hence, President Biden’s “authority is at its maximum” by acting pursuant to an express congressional authorization. And former President Trump’s authority, if any, would be at the “lowest ebb” conceivable by asserting a claim that is incompatible with Congress’s explicit act plus incompatible with the incumbent president’s authority.

Second, the position of the incumbent president in Nixon v. GSA was substantially different from the position of the incumbent in Trump v. Thompson, and so was the nature of the challenge by the former president. The question before the court in 1977 was the constitutionality of a predecessor statute which required former President Nixon to transfer all his presidential records to the Archivist for review and cataloguing. The nature of the challenge proved critical in that case, because Nixon was not actively fighting against a particular disclosure; he was challenging the statute on its face. Therefore, while the court did opine that any interest Nixon might have in confidentiality was reduced by the fact that President Ford had signed the law and President Carter was defending the law, that statement was still made in the context of a facial challenge to a statute, not a request for a specific disclosure.

That fact distinguishes Nixon v. GSA from Trump v. Thompson. In the former, then-incumbent President Carter was arguing for the constitutionality of a statute on its face—a statute which included a nod to executive privilege. In the present case, President Biden has affirmatively and expressly waived executive privilege over the documents in question. Simply put, the two are not the same.

It is a legal truism that a legal privilege is held by the party to whom its benefit accrues. A client benefits from the attorney-client privilege because it allows the client to candidly seek and obtain legal advice. A patient benefits from the psychotherapist-patient privilege for much the same reason. With this in mind, it is clear that Nixon v. GSA already answered this question: “the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic.” In other words, it is a governmental privilege, not a personal privilege.

It naturally follows, then, that because the executive privilege is a governmental privilege, it can be expressly waived only by a representative of the government. Even if it may be asserted by a former president, it can be waived by the incumbent, and that waiver means that the information in question cannot be withheld from disclosure by any other interested party. Just as a former CEO lacks the legal authority to prohibit a corporation’s in-house counsel from releasing information if the current CEO expressly waives the attorney-client privilege on behalf of the corporation, a former president lacks the legal authority to prohibit an executive branch official from releasing information if the incumbent president expressly waives the executive privilege on behalf of the executive branch.

It is this reality that Congress was reflecting when it stated in the PRA that the U.S. District Court for DC had jurisdiction over lawsuits by former presidents against disclosure. A year before that law was written, the Supreme Court had said that a former president could legitimately assert executive privilege, while giving no indication of what such a legitimate assertion would look like. It is no surprise, then, that Congress incorporated this hypothetical possibility into the PRA a year later, but there is no support in either the statute itself or the legislative history that any Member of Congress held any belief that such a case would be meritorious. At most, Congress can be understood to simply believe that “those who see in disclosure a threat to the privilege must be given a meaningful opportunity to contest disclosure on that basis,” as the D.C. Circuit held in a later Nixon case. Such provisions should be read as what they are on their face: an allowance that the Supreme Court stated in 1977 that a former president might sue, not that he would ever win. That’s why we make the distinction that even if a former president can assert executive privilege, they can’t do so meaningfully. In other words, a former president can make a claim that something is covered by executive privilege, but only with the support of the incumbent president.

Which brings us to the final reason that Nixon v. GSA is oft misunderstood. In that case, the Supreme Court stated that it specifically endorsed the position of the U.S. Solicitor General:

Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange 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.

However, it does not necessarily follow that an individual president’s ability to unilaterally assert the privilege “survives the individual President’s tenure.” In context, this opinion is more harmoniously and easily read to say that the information protected by executive privilege continues to be protected beyond the individual president’s tenure, because of the compelling reasons for the privilege’s existence and the chilling effect it would cause if his advisers believed that their “full and frank submissions of facts and opinions” would completely lose their privileged status in eight years, if not fewer. In this light, the Supreme Court’s endorsement of the Solicitor General’s position on this count was unremarkable; it simply held that such information could still be protected—as opposed to, for instance, an incumbent president being unable to assert the privilege to protect records created by his predecessor. This statement, however, carries with it an implicit caveat: the information can still be protected by someone with the authority to do so. In other words, it can be protected by the lawful head of the executive branch, and waived by them alone.

On this note, it is important to return to the relief that former President Trump is ultimately asking the court to grant: he is asking the court to substitute its own judgment for that of the head of a co-equal branch regarding whether or not that branch is appropriately protecting its interests. This is constitutionally highly disfavored, if not outright prohibited. According to Nixon v. GSA, “each branch of the Government has the duty initially to interpret the Constitution for itself, and … its interpretation of its powers is due great respect from the other branches.” Regarding the current executive branch’s “interpretation of its powers,” any court would be required to afford it “great respect.” This respect extends to the determination of whether the public interest is served by potentially chilling government advisors, and it extends to the determination of whether to act in accord with the PRA. In order to find that former President Trump has any authority to successfully enforce an executive privilege claim, the court would have to “disable” (see Youngstown Sheet v Sawyer (Justice Jackson, concurring)) both the Congress and the incumbent president from acting upon the subject. This no court can do.

In the final analysis, the court may decide to resolve this case on the limited question of whether congressional interests win the balancing test, thereby avoiding the constitutional issue we’ve mapped here. But either way, it is clear that former President Trump will continue raising the specter of invoking executive privilege. Until the judiciary definitively resolves this fundamental question, it is incumbent upon lawyers and policymakers to make sure that these issues are examined critically, and we hope that this article adds to that discussion.


Photo credit: Then-President Donald Trump and first lady Melania Trump board Marine One as they depart the White House on January 20, 2021 (Eric Thayer/Getty Images)