(Oct. 19) Former President Donald Trump will likely fail in most of his executive privilege claims against a congressional committee investigating the Jan. 6 Capitol riot, but the committee’s overreach could result in an unfortunately protracted court battle.

Long-standing court precedent holds that executive privilege is real but limited. Precedent and custom also hold that the privilege usually ends when a president leaves office unless the current president, protecting institutional prerogatives, asserts it on whatever particular matter is specifically at issue.

In the case of the Jan. 6 committee’s demands, President Joe Biden has refused to back Trump’s privilege claims. The National Archives, therefore, plans by Nov. 12 to turn over all materials requested by the committee unless blocked by a court order. Trump filed suit to seek such an order .

The Supreme Court has never explicitly ruled on executive privilege disputes between a president and Congress. Yet in the famous Watergate-tapes case of  United States v. Nixon it ruled against the president with regard to interbranch prerogatives against the judicial (rather than legislative) branch of government while laying out a general marker on the limits of executive privilege.

“The interest in preserving confidentiality is weighty indeed, and entitled to great respect,” wrote the unanimous court. But it also wrote, “No case of the Court, however, has extended this high degree of deference to a President’s generalized interest in confidentiality.” Instead, the privilege nears absolute status only with regard to “a claim of need to protect military, diplomatic, or sensitive national security secrets.”

Trump makes no such particularized claims. And, as noted earlier, Biden has not backed the claims Trump has made. That’s why the House committee on the Capitol riot is likely, in the long run, to be able to access most of the relevant Trump records it seeks.

The key word there, however, is “most…. [The full column is at this link.]

As a reminder, the reason the full column is available only by link is that these pieces are copyrighted elsewhere. “Public use” doctrine says I can snag an excerpt to republish, but, technically, not the whole thing. Therefore, I usually publish about 300 words, and then provide a link for the rest.


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