Assessing
Trump’s Claim of ‘Executive Privilege’ on FBI Access to MAL Docs
August 28, 2022
The National Archives and Records
Administration (NARA) and former President Donald Trump are locked in a long running dispute over records taken
from the White House in January 2021. According to a NARA May 2022 letter and more recent reporting, the agency went back and forth with
Trump’s lawyers about “missing Presidential records” throughout 2021 and well
into 2022. In January 2022, Trump transferred 15 boxes of records from
Mar-a-Lago to NARA.
It’s an exchange that may now also be relevant
to Trump’s asking a federal district court in Florida to appoint a Special Master to filter out
documents subject to “executive privilege.”
The May letter
establishes a timeline showing how Trump and NARA have tussled over the
documents and reveals the former president raised the possibility that
executive privilege would block their review by law enforcement and
intelligence agencies. But NARA rejected the executive privilege argument and
shared the documents with the FBI. Below I discuss the statutory and
constitutional framework for assessing Trump’s dispute with NARA regarding FBI
access to the 15 boxes and explain why from a legal and constitutional
standpoint NARA was not only justified in denying Trump’s assertion of
executive privilege. It really had no choice in the matter.
The Presidential
Records Act and Timeline of Events
Some of the documents
in the 15 missing boxes were marked as Top Secret and included Sensitive
Compartmented Information and Special Access Programs—which are among the
nation’s most closely guarded secrets. Based on those classification levels,
NARA informed the Department of Justice, which determined that it should
examine them for two reasons: (1) to evaluate whether they contained evidence
of criminal activity, and (2) to assess potential damage to national security
stemming from how the documents were stored at Trump’s Mar-a-Lago residence
before being returned to Washington. The White House counsel, acting on behalf
of President Joe Biden, then made a formal request that NARA allow the FBI to
inspect the contents of the boxes. On April 12, 2022, NARA provided Trump
notice that it planned to provide access to the FBI, and that it could do so
just a few days later.
This notice was not simply a courtesy, but a
formal step required by the Presidential Records Act (PRA). Although
the PRA declares that “[t]he United States shall receive and retain complete
ownership, possession, and control of Presidential records,” it does not
provide all executive officials with unfettered access to such records.
Instead, the PRA assigns to the archivist of the United States (who heads NARA)
the “responsibility for the custody, control, and preservation of, and access
to” the records of each former president, and it establishes procedures pursuant
to which NARA may provide access to others, including the incumbent president.
Specifically, the PRA
provides that “subject to any rights, defenses, or privileges which the United
States or any agency or person may invoke,” presidential records of a former
president “shall be made available . . . to an incumbent President if such
records contain information that is needed for the conduct of the current
business of the incumbent President’s office and that is not otherwise
available.” It further instructs NARA to issue regulations for providing notice
to a former president when materials are to be made available pursuant to this
provision. Under the applicable NARA regulations, the former president is
normally given 30 days advance notice, but NARA retains the discretion to
adjust the period as appropriate.
Here NARA decided that the urgency of the matter
made it appropriate to shorten the initial notice period considerably (to as
little as six days), but upon request from Trump’s representatives (and with
the acquiescence of the White House counsel) it extended that period for an
additional 11 days, until April 29, 2022. At that point, Trump’s team asked in
writing for additional time to review the materials in the 15 boxes for the
purpose of determining whether any document therein was “subject to privilege”
and consulting with the former president so he could decide whether to assert
“a claim of constitutionally based privilege” to block the FBI’s access to any
such documents, the letter shows. Alternatively, they informed NARA it should
consider their request to be “a protective assertion of executive privilege
made by counsel for the former President.”
But in the May 10 letter, NARA denied these
requests. The agency pointed out that four weeks had already passed since it
informed Trump of its intent to provide access to the FBI, implicitly
suggesting that this was adequate time for a review of the relatively limited
quantity of material at issue. In any event, NARA noted “there is no precedent
for an assertion of executive privilege by a former President against
an incumbent President to prevent the latter from obtaining from NARA
Presidential records belonging to the Federal Government where ‘such records
contain information that is needed for the conduct of current business of the
incumbent President’s office and that is not otherwise available 44 U.S.C. § 2205(2)(B)’” (emphasis in
original). It expressed strong doubt that a former president could ever successfully
assert a claim of executive privilege against an executive branch agency
authorized to obtain access to presidential records by the incumbent president,
but it argued that in any event “[t]he question in this case is not a close
one,” given that the FBI required access both for purposes of a criminal
investigation and to make a damage assessment of potentially compromised
classified materials. Accordingly, NARA denied both Trump’s request for a
further extension of time and his “protective assertion of executive
privilege.” Instead, it informed his lawyers that the FBI would be permitted to
access the boxes of material as early as May 12, which (presumably not
coincidentally) was exactly 30 days after NARA’s initial notice of intent to
provide access.
Assessing Trump’s
Executive Privilege Claim
From a legal and
constitutional standpoint NARA was not only justified in denying Trump’s
assertion of executive privilege, it really had no choice in the matter.
To understand why this
is so, it is helpful to break down the question into three questions:
(1) Does a former
president ever have the right to successfully assert executive privilege to
prevent access to presidential records by the incumbent president or executive
agencies acting under the incumbent’s authority?;
(2) If such a right
exists, could it be successfully exercised under the current circumstances?;
and
(3) Who decides the
first two issues?
Executive Privilege by a Former President
First, the PRA makes
clear that nothing in its provisions are to be interpreted as expanding or
diminishing the former president’s constitutional rights. Indeed, both the
statutory language and legislative history make clear that Congress has been
extremely skeptical of the notion that a former president can successfully
assert executive privilege under any circumstances without the support of the
incumbent president. While the executive branch has taken a different view,
that argument has never extended so far as to suggest that the former president
can successfully assert the privilege in opposition to the incumbent, much less
that he can do so when the incumbent himself is seeking access to presidential
records for purposes of carrying out the constitutional functions of the
executive branch.
For example, when in the 1980s the Office of
Legal Counsel issued a much criticized opinion (later rejected by the D.C.
Circuit) that an incumbent president should ordinarily defer to a former
president’s assertion of executive privilege with regard to the latter’s
presidential records, it nonetheless explained that “this principle must yield
when it conflicts with the discharge of the incumbent’s constitutional
responsibilities;” thus, “if the incumbent President believes that the
discharge of his constitutional duties (e.g., investigation and
prosecution of alleged crimes) demands the disclosure of documents claimed
by the former President to be privileged, it may be necessary for him to oppose
a former President’s claim.” (emphasis added). Similarly, the author of the
opinion, Assistant Attorney General Charles Cooper, when summoned to defend it
before Congress, explained that “an incumbent President need not respect a
former President’s claim of privilege if the incumbent feels that it would
interfere with his ability to execute his legal and constitutional responsibilities
as he, alone, understands and perceives them.”
Whether a former president should ever have
the unilateral power to assert executive privilege over the objection of the
incumbent remains an unsettled issue, as the Supreme Court
recently recognized in Trump v. Thompson.
As I have pointed out elsewhere, this notion is in considerable
tension with OLC’s general approach to executive privilege. At least one member
of the Supreme Court (Justice Kavanaugh) nevertheless believes that “[a] former President must
be able to successfully invoke the Presidential communications privilege for
communications that occurred during his Presidency, even if the current
President does not support the privilege claim.” In Thompson,
however, Justice Kavanaugh was writing in the context of a congressional request (from the January 6th Committee)
to access presidential records; it is by no means clear that he would maintain
the same view where the incumbent president himself was seeking access to the
records for purposes of carrying out the executive’s legal and constitutional
functions.
Indeed, Kavanaugh, during his tenure in the
White House counsel office, famously defended a controversial executive order on presidential records
issued by President George W. Bush. That order made it extremely difficult for
the public, Congress or the courts to access presidential records over the
objection of a former president. However, the order explicitly provided that it
did not address access by the incumbent president to those records, a fact
somewhat bitterly noted by congressional critics at the time.
In short, the notion
that a former president can block his successor from accessing presidential
records that the incumbent believes he needs for purposes of carrying out
executive functions would be the most extreme manifestation of a doubtful legal
theory, and one that has no support in any legal authority to date.
Applying Executive Privilege to the Mar-a-Lago
Documents
Second, even if some
circumstances might allow a former president to block an incumbent president
from accessing the former’s records, that certainly is not the case here. The
Biden administration has identified two purposes for reviewing the 15 boxes of
materials. The first, law enforcement, is precisely the type of core executive
function that Cooper noted would justify disregarding the former president’s
claim of executive privilege. The second, conducting a damage assessment of
classified materials that had been missing for over a year to determine whether
remedial steps needed to be taken, is perhaps even more compelling.
Indeed, during the
congressional hearings that led to the enactment of the PRA, one of the points
supporters of the bill made was that incumbent presidents needed to have access
to the records of their predecessors for national security purposes. For
example, some PRA proponents noted that during the Kennedy administration some
assurances made to the French government during the Suez crisis were only
documented in records that former President Eisenhower took with him when he
left office, and which only he and his family could access. One witness cited
this example of the “insanity” of the prior system and urged Congress:
We cannot allow the most secret documents to
be taken away every 4 years and treated like the personal property of a private
citizen—the ex-President of the United States. A new President should not be
required to come hat in hand, begging his predecessor to let him see vital
documents relating to the national security.
Another witness, the
former White House counsel to President Ford, explained that under the proposed
legislation “no President can restrict a successor in office from getting
continuous access to those records that the successor may need.”
Even if former
President Trump has a colorable argument that the FBI does not really need
access to these documents (and, to my knowledge, no such argument has been made
publicly), it seems highly unlikely that any court would substitute its
judgment (or the judgment of a politically unaccountable former president) for
that of the incumbent president in circumstances such as these. As NARA noted
in its letter, this does not appear to be a close question.
To be sure, it is possible that the 15 boxes
of documents contain privileged documents which are not classified and which
have no bearing on either the criminal investigation or the damage assessment.
Had Trump’s representatives reviewed the materials and identified such documents,
they might have had a much stronger claim that executive privilege protected
those specific documents (or indeed fail to meet the statutory
standard that they are needed for the conduct of current business and not
available elsewhere). But it appears that Trump’s representatives did not
conduct that review and no such documents have come to light. Thus, it is
impossible to assess whether privilege protects any part of the 15 boxes.
A Court Must Decide a Former President’s
Privilege Claim
Finally, longstanding executive branch
doctrine makes clear that the archivist, as a subordinate executive branch
official, has no authority to countermand the sitting president’s decision on
whether to honor the former president’s invocation of executive privilege.
Indeed, NARA regulations provide that it cannot honor the
former president’s invocation of privilege unless the
incumbent president affirmatively decides to support it. The only viable option
for a former president to challenge an access request by the sitting president
is to file suit in the United States District Court for the District of
Columbia, which the PRA vests with jurisdiction “over any action initiated by
the former President asserting that a determination made by the Archivist
violates the former President’s rights or privileges.”
However, Trump (who is
hardly shy about filing legal actions to protect his rights, real or imagined)
chose not to challenge the archivist’s decision through the manner prescribed.
This suggests perhaps that his true objections are more political than legal in
nature.
If the federal court in Florida grants his
application for appointment of a special master, he will have the opportunity
to make the case for applying executive privilege to a different set of
documents—those seized by the FBI during its search of Mar-a-Lago—but will face
similar obstacles to success.
