This essay of mine in The Hill explains why former President Trump’s executive privilege claim will not prevent the House Select Committee from obtaining White House documents relevant to the January 6 insurrection. Here is the gist:
Trump is learning what executive privilege really means
By Steven Lubet, Opinion Contributor — 11/17/21 12:00 PM EST
Executive privilege is not absolute, even for sitting presidents. As the U.S. Supreme Court held in a case involving former President Nixon, the privilege can be “overcome by an appropriate showing of public need by the judicial or legislative branch.”
Trump’s lawyers object to Biden’s authority, however, arguing that “weakening executive privilege by allowing it to expire with a president’s term of office makes no more sense than allowing the attorney-client privilege to terminate at the end of a representation.” Trump’s legal team has the right analogy, but their conclusion is dead wrong.
It is 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 in confidence to corporate counsel, seeking advice on sensitive or even potentially criminal matters, it is always up to the corporation, acting through its currently “authorized constituents,” to decide whether to disclose the content of such communications to law enforcement or other outside agencies.
In technical legal terms, it would be totally nuts to allow ex-CEOs to determine the breadth of investigations into their own misconduct. Thus, the privilege is held by the institution for whose benefit it presently exists, to be exercised or relinquished by current executives rather than the former office-holders whose communications or documents are at issue.
You can read the entire essay on The Hill.
"As Judge Chutkan observed in her extensive opinion, executive privilege exists for the benefit of the presidency, rather than for any individual president, much less former presidents. Trump is therefore almost certain to lose."
"Thus, the privilege is held by the institution for whose benefit it presently exists, to be exercised or relinquished by current executives rather than the former office-holders whose communications or documents are at issue."
This doesn't follow. There are plenty of offices whose privileges extend to past officeholders. The reason is simple: the very raison d'être of such privilege. It exists to effectuate effective administration of the office and to provide officeholders with the comfort and security to undertake certain actions in furtherance of their roles that they'd otherwise be deterred from doing. Hence, why they are afforded the privilege AFTER retiring, resigning, etc.
You also haven't shown that the privilege's removal or denial is solely within the current officeholder's discretion either. Indeed, as you state: "As the U.S. Supreme Court held in a case involving former President Nixon, the privilege can be “overcome by an appropriate showing of public need by the judicial or legislative branch".” That should be the Court's standard for determining whether the former POTUS' persisting executive privilege should be upheld or not. This may also concern a reevaluation of the scope of the "express exception for congressional requests for 'the activities, deliberations, decisions, and policies' of the president."
Like most of the rest of the 7.7 billion people on this planet, one additionally wonders whether the current POTUS is even sui juris, such that he could offer formal consent to anything…
Next do the JFK assassination records