A federal judge’s Monday order granting former President Donald Trump‘s request for a special master to review documents seized from Trump’s Mar-a-Lago home and determine if some items may be protected by executive privilege has prompted fresh questions about a former president’s entitlements.
That’s partially because federal courts, including the Supreme Court, have been relatively ambiguous as to the limits of executive privilege and have never explicitly defined what types of documents are and are not protected.
But in a more recent 2020 high court case, Trump v. Mazars, justices clarified that the executive branch and the legislative branch historically uphold a “tradition of negotiation and compromise — without the involvement of this Court” when Congress seeks a president’s records.
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So, what even is executive privilege?
Executive privilege constitutes the legal principle that allows specific White House records to be shielded from the purview of the courts and lawmakers for the purpose of allowing presidents to receive advice on highly important decisions from advisers or aides. The privilege itself is rooted in the separation of powers doctrine, which is outlined under the first three articles of the Constitution.
Trump repeatedly touted this privilege as president in his effort to block records and testimony from Democrats in Congress who were investigating him, such as during the first impeachment inquiry of his presidency. Courts ultimately did not rule on the merits of Trump’s executive privilege claims while he was in office.
Notably, presidents are allowed to waive the privilege power, just as President Joe Biden did when the House committee investigating the Jan. 6 riot at the Capitol sought White House records from the former administration.
Are there any known limits to this executive power?
Legal scholars often point to the 1974 high court opinion in United States v. Nixon as the decision that established some limits of executive privilege when a president has a legal duty to provide evidence of communication between aides or if the information is relevant to a criminal case. This case matters as Trump is under investigation by the Department of Justice for a possible Espionage Act violation and possible obstruction of justice, according to the unsealed warrant for the unprecedented FBI raid of his Florida home.
In civil actions, courts have held that the recognition of executive privilege should be decided on a case-by-case basis by gauging the need for the administration of justice against the need to protect confidentiality. In these circumstances, courts have generally held that statements of fact are exempt from privilege, while opinions, recommendations, and advice are protected, according to Cornell Law’s Legal Information Institute online database.
A case decided in 1997 by the U.S. Court of Appeals for the District of Columbia Circuit, In re: Sealed Case, might present the broadest attempt by a federal court to define the scope of executive privilege by breaking it down into two forms, as outlined by the Congressional Research Service.
What are the forms of executive privilege?
The more significant form of privilege is called the “presidential communications privilege” and applies to communications directly with the president or communications “authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.”
In fact, the communications privilege played a crucial role in the Nixon case, and even some courts before the 1974 case had required the executive branch to provide government records and documents prepared for a sitting president. More than two decades later, Sealed Case clarified that Congress can breach the communications privilege when it pursues information that’s “demonstrably critical to the responsible fulfillment of the Committee’s functions.”
A less significant form of privilege is known as the “deliberative process privilege,” which allows “the government to withhold documents and other materials that would reveal ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'”
How does this all relate to Trump?
U.S. District Judge Aileen Cannon, a Trump appointee who was confirmed in the former president’s final weeks in office, held on Sept. 5 that a special master could determine whether Trump made valid claims of executive privilege or attorney-client privilege over some of the documents despite DOJ officials disputing that Trump cannot assert executive privilege against the objection of a sitting president, Biden. Her order also temporarily limited the DOJ’s investigation while awaiting the appointment of a special master.
But the DOJ filed a notice Thursday saying it will appeal parts of Cannon’s order and request to dial back the judge’s injunction against using classified records in the investigation.
The “Intelligence Community’s classification review and national security risk assessment are inextricably linked with the criminal investigation,” the DOJ wrote, also requesting to exclude all documents with classification markings from any special master review while the DOJ appeals her ruling to the 11th U.S. Circuit Court of Appeals.
While Biden has denied Trump’s assertion of post-presidency executive privilege claims in the past, he deferred the decision to whether privilege applies in the Mar-a-Lago investigation to the National Archives, which is part of the executive branch, as is the FBI.
The national archivist determined it “would not be viable” for Trump to exert executive privilege, as the records discovered at Mar-a-Lago would only be seen by other parts of the executive branch.
Cannon, a 41-year-old judge who has only been in her post for roughly 20 months, found that the DOJ’s claim that Trump could not assert executive privilege was not settled law in her Sept. 5 order.
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Cannon held that Trump faced “an unquantifiable potential harm” from information that could be revealed to the public, which appeared to insinuate the DOJ could possibly leak files to reporters.
She also emphasized his status as a former president, coupled with a possible future indictment, would result in reputational harm “of a decidedly different order of magnitude” in her reasoning for providing him with a special master.
