Last week, the White House Counsel disclosed that President Biden had ordered the release of White House visitor logs to the select congressional committee investigating the Jan. 6 insurrection at our nation’s Capitol complex. As we know, former President Trump has asserted executive privilege to block the release of presidential records in connection with the events of Jan. 6 to the committee. To date, such efforts have been unsuccessful in the lower courts but the final word will come from the Supreme Court.
I believe the former president’s continued efforts will ultimately fail.
The term “executive privilege” does not exist in our constitution. Yet the current debate in the courts is not about the existence of the privilege. The Supreme Court pronounced the privilege in the Watergate era case of the United States v. Nixon, finding that it was an implied or inherent constitutional power necessary for the president to protect internal communications and obtain candid advice from advisors. Nor is the matter under question here solely about whether a former president alone may assert the privilege. Some legal scholars believe the answer is yes.
However, since the privilege is best viewed, in my judgment, as attached to the Executive Office, it is likely that a former president would need the support of the sitting president in order to successfully assert it. However, assuming the former president alone has the power to assert the privilege then we must decide its scope and application.
In the Nixon case, the court employed a balancing test, weighing the need for disclosure of the information versus the need to protect it from disclosure. In making that calculation the courts have understandably afforded great weight to the views of the sitting president, who is in a better position than a former president to know or have access to the most current relevant information, and thus is better able to weigh the damage to the presidency if the information were disclosed. The views of the current president are critical as the court found in Nixon v. General Services Administration. Disclosure would also be dependent upon the need for the information. The greater the need, (for example, an attempt to uncover and successfully prosecute criminal wrongdoing) the greater the weight in favor of disclosure.
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In the matter at hand, the current president has declined to assert the privilege. This diminishes the legal position of the former president. Further, the information requested by the Jan. 6 committee relates to an armed violent attempt to stop Congress from performing its duty to certify the results of a presidential election. This is a serious matter. Lives were lost, many were injured. Rioters damaged government property. Several people have been convicted or pleaded guilty to federal crimes committed that day. Congress needs to gather information and understand fully what happened and why. I can think of few examples where the need for information would be more important.
During my federal service, I had the responsibility of protecting the constitutional prerogatives of the presidency. I defended what I believed were legitimate assertions of executive privilege in order to preserve a power necessary for the president to effectively govern as our framers intended. As a general matter, I am loath to predict publicly how the justices will decide a case. However, based on the views of the sitting president and the fact that the information sought is central to the inquiry of the Jan. 6 committee, I believe the Supreme Court will, and should, rule against former President Trump’s assertion of privilege.
The nation and the institution of the presidency will not be damaged or weakened by such a decision. On the contrary, that decision would inspire confidence in our judicial system and reassure the American people that our institutions continue to serve as effective guardrails to protect our democracy.
Alberto Gonzales is dean and Doyle Rogers Distinguished professor of Law at Belmont University College of Law and was counsel to the president and the United States attorney general in the George W. Bush administration