What is executive privilege?

ON NOVEMBER 12th, a federal grand jury indicted Steve Bannon, a former adviser to Donald Trump, for contempt of Congress. Mr Bannon defied a subpoena from the House Select Committee investigating the January 6th insurrection, in which a mob of Donald Trump supporters attacked America’s Capitol. Mr Bannon refused to answer questions because Mr Trump asserted executive privilege over their communication—even though Mr Bannon was not a government employee in the run-up to January 6th. That is an unusual assertion of privilege, which customarily covers communication between the president and executive-branch employees. What is executive privilege, and are Mr Trump’s claims likely to succeed?

Broadly, executive privilege is a doctrine that permits the president and executive-branch officials to shield some of their records from the other two branches of government (Congress and the courts). Typically, the executive branch asserts it in response to a request from another branch of government. It is not mentioned in the constitution, though courts have recognised that it exists, and derives from separation of powers: if Congress or the courts could demand any executive-branch communication at any time, the executive would no longer be fundamentally equal in power to the other two.

Precisely what sorts of communication can be withheld has long been subject to debate: unsurprisingly, the executive has tended to take an expansive view of privilege, which the other two branches have contested. Often these arguments were resolved through negotiation rather than legal wrangling, because the parties involved understood executive-privilege questions as more political than legal.

But not always. The Supreme Court weighed in nearly 50 years ago, in United States v Nixon, when then-President Richard Nixon asserted that privilege was outside of judicial review, meaning courts could not weigh in. The court disagreed, finding that it extends to some communications related to national security, but that privilege is neither absolute nor beyond review; instead, it must be balanced against the legitimate interests and claims of the other branches.

Subsequent federal courts have found that executive privilege applies to “direct decision-making by the president,” but that it can be overcome by showing that “the subpoenaed materials contain important evidence...not available with due diligence elsewhere,” and that a privilege claim cannot provide absolute immunity from congressional subpoenas (such as those issued by the January 6th Select Committee).

Even by the historically maximal approaches of previous presidents, the claims of privilege emanating from Mr Trump and his circle are extraordinary. For instance, Steve Bannon, a former adviser to Mr Trump, has defied a congressional subpoena, claiming that Mr Trump’s claim of privilege bars him from honouring it—even though he was not a government employee in the run-up to January 6th. It is unclear whether former presidents’ assertions of privilege are legally binding, particularly concerning materials over which the current president has waived privilege.

The ruling on November 9th holds that they are not. An appellate court could overturn it, but that would have unwelcome implications: it would reduce the power of a sitting president in favour of a former one, over materials that have not traditionally been covered by privilege anyway. But that may be beside the point. Mr Trump and his circle do not have to win in court. They merely need to keep the legal wrangling going until after next year’s midterm elections, in which Republicans will probably take back the House, and the committee investigating the January 6th insurrection will cease to exist.

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