Jan. 6: Five reasons Trump cannot hide behind executive privilege

The House select committee investigating the Jan. 6 Capitol insurrection — which occurred a year ago this week — is reportedly planning televised hearings in the coming months to share what it’s learned from the over 300 witnesses and tens of thousands of documents consulted thus far. Rep. Liz Cheney (R-Wyo.) — herself an experienced lawyer and vice chair of the committee — has signaled that evidence is mounting that former President Donald Trump might be guilty of obstruction of an official proceeding, which is a federal felony that can trigger up to 20 years in prison.

There’s no established legal or historical path from a congressional investigation to a criminal trial of a former president — and for good reason. Presidents are special, and they enjoy numerous special privileges of the office. During the Trump years, debate swirled around the concept of executive privilege, and whether his status as president would immunize him from liability for actions taken both before and during his presidency. As the work of the select committee heats up, executive privilege could again loom large — as has already been the case with the snubbing of subpoenas by former Trump adviser Steve Bannon and chief of staff Mark Meadows.

Here are five reasons why an attempt by Trump to hide behind executive privilege regarding Jan. 6 should probably fail.

1. President Joe Biden’s decision not to invoke executive privilege on Trump’s behalf is likely fatal to any competing claim by Trump. With respect to the protection of military and state secrets, the U.S. Supreme Court in 1953 stated in United States v. Reynolds that the “privilege belongs to the Government, and must be asserted by it; it can neither be claimed nor waived by a private party” (which is Trump’s status now). “It is not to be lightly invoked,” the court explained. “There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” No such formal claim has been lodged by Biden — or Trump, for that matter — in connection with Jan. 6.

Trump did initiate litigation over whether his assertion of executive privilege would supersede Biden’s contrary decision under the Presidential Records Act for purposes of determining whether the select committee sees archived White House documents. But Trump roundly lost that bid in the U.S. Court of Appeals for the D.C. Circuit. Even if he succeeds in persuading the Supreme Court to take — and reverse — that case, a favorable ruling regarding archived records under the language of the Presidential Records Act would not necessarily protect Trump from a congressional or judicial subpoena for testimony. There’s only one president at a time under the Constitution, and in this moment, it’s Biden.

2. Executive privilege does not offer blanket immunity from legal process. Like the attorney-client privilege, executive privilege does not operate to immunize an individual from having to provide any and all testimony or records pursuant to a lawful subpoena. It only allows a recipient’s lawyer, during an interview, to lodge objections question-by-question and direct the witness not to answer those questions that call for privileged information. Former President Bill Clinton testified in the Monica Lewinsky investigation under Independent Counsel Kenneth Starr, for example, even though he was the sitting president of the United States.

In this way, executive privilege is not unlike the much weightier Fifth Amendment ban on self-incrimination, which likewise anticipates that witnesses will show up for testimony and answer certain questions by invoking the Fifth — rather than authorizing a blanket refusal to appear altogether. This is precisely why the Justice Department saw fit to indict Steve Bannon for contempt of Congress. He refused even to appear before the committee on grounds of executive privilege, which was not his right even if it had been formally invoked by the president.

3. Executive privilege did not protect President Richard Nixon from having to produce his Oval Office tapes in response to a subpoena on the theory that the public interest in knowing the truth outweighed his interest in secrecy. Information bearing on a bloody insurrection hardly warrants greater protection than the Watergate tapes that led to the untimely end of Nixon’s term in office. In United States v. Nixon, a unanimous Supreme Court explained in 1974: “Neither the doctrine of separation of powers nor the generalized need for confidentiality at high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

In short, executive privilege can be outweighed by other public interests — and Congress’s interest in investigating Jan. 6 may be one of them.

Indeed, in its 2020 decision in Trump v. Mazars, even the modern conservative-leaning court refused to extend executive privilege beyond its existing boundaries to protect Trump’s private financial records from disclosure to a grand jury. This round, Trump shouldn’t get greater protections than Nixon did, either.

4. Even if executive privilege applied to Trump’s communications around Jan. 6, it may have already been waived. There aren’t a lot of cases discussing executive privilege. But there is a lot of law applying the related concept of attorney-client privilege. The rationale behind both is similar: It’s good for presidents to have confidential communications regarding issues of national importance and for clients to have confidential communications with their lawyers about legal issues. If such communications were easily made public, people wouldn’t have them to begin with, and the quality of the privilege holder’s decision-making would suffer.

But if a client allows a friend to listen in on a conversation with a lawyer, there’s no reason to keep it confidential anymore. The inclusion of a third party is known as a waiver. In some jurisdictions, a waiver extends to the entire subject matter of the communication — not just the actual statements overheard. It’s been reported that Meadows already put some of what he discussed with Trump that day in his forthcoming book. If that’s true, a court might deem any privilege around those conversations waived.

5. The attorney-client privilege has an exception for communications made in furtherance of a crime or fraud. So stoking an insurrection to interfere with the peaceful transfer of presidential power should qualify for purposes of executive privilege, too. A client can’t obtain a lawyer’s advice on where to bury a body and then hide behind the attorney-client privilege if asked about that conversation. The need for airing of evidence of a crime outweighs the client’s need for confidentiality. The same exception should extend to communications with a president regarding an attempted overthrow of a legitimate election. 

What many people don’t seem to understand about executive privilege is that it’s not an insurmountable barrier to the public’s right to know about presidential communications. It’s merely a policy gloss on presidential prerogatives that appears nowhere in the actual Constitution. It is accordingly fickle. It is not a right, but a privilege that courts have extended to presidents out of respect for the office. Presidents who fail to show reciprocal respect for the office arguably forfeit access to its privileges. 

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (forthcoming February 2022). Follow her on Twitter: @kimwehle