Former President Donald Trump claims the right to assert executive privilege with regard to presidential records of his administration, including such records that were kept in his Mar-a-Lago home in apparent violation of the Presidential Records Act and subsequently seized by the FBI pursuant to a search warrant. While there has been much debate over whether a former president can ever assert executive privilege in these circumstances (namely where the records are sought by the executive branch in furtherance of its performance of executive functions), less attention has been paid to specific type of “executive privilege” that is at issue here.
Trump’s contention is founded on the Supreme Court’s 1976 decision in Nixon v. Administrator of General Services (GSA), where the Court concluded that under some circumstances a former president could assert one type of executive privilege, commonly known as the presidential communications privilege. The presidential communications privilege (first recognized by the Court in the 1974 Nixon tapes case) is a qualified privilege applying to confidential deliberative communications between a president and his advisers. The idea is that a president will not be able to get candid advice from subordinates without an assurance this advice will generally remain confidential and that this assurance of confidentiality should not automatically end (or be solely controlled by a successor) when a president leaves office. Indeed, it’s also the type that Justice Brett Kavanaugh discussed in his 2021 opinion suggesting a former president’s view of executive privilege could in some cases trump the incumbent’s view.
Importantly, neither Nixon v. GSA nor Kavanaugh’s concurring opinion suggest that a former president could assert a different type of executive privilege — the so-called “state secrets” privilege which applies to military and diplomatic secrets and which the Court has suggested may be more absolute than the qualified presidential communications privilege. To the contrary, Nixon v. GSA noted that all parties to the case, including former President Nixon, agreed that “the very specific privilege protecting against disclosure of state secrets and sensitive information concerning military or diplomatic matters . . . may be asserted only by an incumbent President” (emphasis added). Thus, the Court contrasted the privilege related to confidentiality of presidential communications with the “privilege relating to the need ‘to protect military, diplomatic, or sensitive national security secrets’” (quoting U.S. v Nixon).
This distinction is consistent with the Justice Department’s recent filing in the federal district court in Florida, which explains that executive authority to classify and control access to information bearing on national security can be exercised only by the incumbent president, not by any former president, “because it is the incumbent President who bears the responsibility to protect and defend the national security of the United States.”
To be sure it is possible for documents to be protected by both the presidential communications and state secrets branches of executive privilege, but there is reason to believe that at least some of the disputed documents taken to Mar-a-Lago would be protected, if at all, only by the latter. For example, Trump allegedly retained correspondence with North Korean leader Kim Jong Un, which might very well qualify as state secrets but certainly would not fall under the presidential communications privilege since Kim was not, under any definition, an adviser to the former president. Similarly, it has been reported that documents seized from Mar-a-Lago included sensitive intelligence on a foreign nation’s nuclear capabilities, which would certainly qualify as state secrets but very likely would not constitute presidential communications.
Thus, whatever Trump’s chances of convincing the courts that he can assert the presidential communications privilege here against the FBI and the current president, it may not matter with regard to many if not all of the national security documents that are actually at issue.