Trump is learning what executive privilege really means

Previous President TrumpDonald Trump Biden sends 2016 climate treaty to Senate for ratification US and China ease restrictions on journalists Americans continue to spend MORE he’s desperate to keep White House documents out of the reach of the House Select Committee on the January 6 attack. His affirmation of executive privilege, which seeks to impose the Administration of National Archives and Records [NARA] to comply with a Congressional records request, it was flatly denied by US District Judge Tanya Chutkan, and the case has been scheduled for an expedited hearing before the District of Columbia Court of Appeals on November 30.

As Judge Chutkan observed in her extensive opinionExecutive privilege exists for the benefit of the presidency, more than for any individual president, much less for past presidents. Therefore, it is almost certain that Trump will lose.

The Select Committee’s request for numerous Trump-era documents includes “written communications, calendar entries, videos, photographs, or other media related to [Trump’s] The January 6 speech, the January 6 rally and subsequent march, the violence on Capitol Hill and the response within the White House. “

It was notified to NARA in accordance with the Presidential Records Act. [PRA], which was approved by a large bipartisan majority following the resignation of President Nixon. The PRA recognizes the need to “encourage the free flow of ideas within the executive branch” by allowing presidents to protect certain documents from public display, even after they leave office. Even so, it includes an express exception for congressional requests for “the activities, deliberations, decisions, and policies” of the president.

Fundamentally, the PRA gives incumbent presidents the power to object or agree to the production of records for Congress, both for themselves and for their predecessors. In this case, President BidenJoe Biden Idaho House of Representatives Passes Workers’ Compensation Bill Biden Submits 2016 Climate Treaty to Senate for Ratification Rubio Pledges to Delay Biden’s China and Spain Ambassador Candidates MORE formally consented to the production of the document, so invalidate Trump’s assertion of executive privilege.

The only recourse left to Trump was the courts, he filed a lawsuit on October 18, where the Biden administration has firmly reaffirmed its position that the need for Congress to investigate the Capitol uprising “outweighs the confidentiality concerns” of the former president. Trump.

Executive privilege is not absolute, not even for incumbent presidents. As the United States Supreme Court held in a case involving former President Nixon, the privilege may be “outweighed by an appropriate display of public necessity on the part of the judiciary or legislature.” Past presidents, including Ronald Reagan and George W. Bush, voluntarily renounced their own executive privilege, recognizing the importance of allowing Congress to pursue investigations in the public interest.

Trump’s lawyers object to Biden’s authority, however, arguing that “weakening executive privilege by allowing it to expire with the term of a president makes no more sense than allowing attorney-client privilege to end at the end of a representation.” Trump’s legal team has the correct analogy, but their conclusion is completely wrong.

It is a black letter law that the corporate attorney-client privilege exists for the benefit of the company itself and does not belong to any particular corporate officer. Although a CEO may speak confidently with a corporate attorney, seeking advice on sensitive or even potentially criminal matters, he is always dependent on the corporation, acting through its current “authorized constituents, ”To decide whether to disclose the content of such communications to law enforcement or other outside agencies.

That is especially the case with a former CEO suspected of committing a crime in office. Companies routinely waive attorney-client privilege so investigators can get to the bottom of possible fraud, mismanagement, or violation of the law, and former officials have no right to complain.

The same reasoning holds true in bankruptcies, where the successor trustee takes over the attorney-client privilege of a company, or when shareholders have sued corporate officers for embezzlement. In technical legal terms, it would be folly to allow former CEOs to determine the extent of investigations into their own misconduct. Therefore, the privilege is held by the institution for whose benefit it currently exists, to be exercised or assigned by current executives and not by former office holders whose communications or documents are the subject of litigation.

Trump is a deposed CEO, whom the American people voted out of office. In a recent interview, he praised the “common sense” of the Capitol insurgents who terrorized their own vice president by singing “Hang Mike penceMichael (Mike) Richard Pence Trump Criticizes Former Pence Aide After She Said He Admitted He Lost The Hill’s Morning Report – Presented By ExxonMobil – Will Biden’s Big Bill Pass The House This Week? Barrasso refuses to criticize Trump for Pence’s comments MORE. “Congress and the public surely have the right, and a deep need, to access the evidence in the National Archives regarding the maneuvers in the Trump White House.

Trump’s claim of perpetual privilege will not succeed. The truth about your responsibility on January 6, whatever it may be, will be revealed. As Judge Chutkan explained, “Presidents are not kings, and [Trump] he is not president. He reserves the right to claim his record is privileged, but the incumbent president ‘is not constitutionally obligated to honor’ that claim. ”To put it more succinctly, whether he likes it or not, Donald Trump has left the building.

Steven Lubet is the Williams Memorial Professor at Northwestern University Pritzker School of Law and the author of “Harpers Ferry’s ‘Colored Hero’: John Anthony Copeland and the War on Slavery”.

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