Well, Now, This Is An Interesting Question

Trump issues frantic response to pending release of Jan. 6 records https://t.co/5skup1cuV4

— Raw Story (@RawStory) September 23, 2021

At least to lawyers:

Trump intends to claim "executive privilege" to block information from the House select committee investigating the insurrection, but lawmakers argue that's not relevant as they look into the twice-impeached one-term president's actions leading up to the attack -- and as they unfolded, reported the Washington Post.

"It's not really relevant because there's no president involved — there's no such thing as a former president's executive privilege," said Rep. Jamie B. Raskin (D-MD), a constitutional law scholar who serves on the committee. "That's extremely dilute and not really relevant."

A spokesman for President Joe Biden called the Capitol riot "a dark stain on our country's history" and pledged a thorough investigation to ensure nothing like that ever happens again, while a Trump spokesman issued a frantic response.

"The highly partisan, Communist-style 'select committee' has put forth an outrageously broad records request that lacks both legal precedent and legislative merit," said Trump spokesman Taylor Budowich in a statement. "Executive privilege will be defended, not just on behalf of President Trump and his administration, but also on behalf of the Office of the President of the United States and the future of our nation."

Well, there actually IS such a thing as "former President executive privilege".  But it's not as simple as it sounds, which is what makes it interesting.

There are no clear answers on the ability of a former president to assert privilege, but there are some principles and precedents to guide the inquiry. The most famous case on executive privilege is United States v. Nixon, in which the Supreme Court ordered President Nixon to disclose the White House tape recordings about Watergate. But, in an often-overshadowed second privilege case involving Nixon, Nixon v. Administrator of General Services, the court held that Nixon, as a former president, had standing to assert executive privilege. The case arose out of a fight for access to the documents and tape recordings of Nixon’s tenure in the White House. Upon his resignation, Nixon had instructed government archivists to pack up all of his White House materials and recordings and ship them to California. But the Watergate special prosecutor still needed access to the materials for his investigation, and there were outstanding subpoenas for some of the material. President Ford asked Attorney General William Saxbe whether the papers belonged to Nixon or whether they belonged to the government. Saxbe, recounting a long history of treating presidential papers as the former president’s property, concluded that the materials belonged to Nixon. Nixon then entered into an agreement with the administrator of the General Services Administration (GSA) that would have severely restricted access to some of the materials and, among other things, would have provided for the destruction of the infamous tape recordings.

Let me interrupt here and clarify:  at this point Nixon has an AG opinion, not a court ruling, that the papers he asked be moved to California are his.  That's the state of play when Congress gets involved, and important for the analysis as we continue:

Congress was, unsurprisingly, upset at this sequence of events and, in response, passed the Presidential Recordings and Materials Preservation Act, which applied solely to the Nixon materials. The law was specifically designed to abrogate the agreement governing Nixon’s records and eliminate Nixon’s control of and ownership over the materials. President Ford signed it into law on Dec. 19, 1974, without objection. The Supreme Court allowed Nixon, even as a former president, to challenge the law as an unconstitutional infringement of executive privilege. But the core of the court’s reasoning explains only why executive privilege should apply to former presidents’ documents. After recognizing the counterargument that a former president no longer had any role under the Constitution, the court adopted the “sounder” view put forward by the solicitor general that the “privilege survives the individual President’s tenure.” Otherwise, the court reasoned, advisers would not have a sufficient guarantee that their conversations with the president would be kept confidential.

That seems fairly clear; but this is where the legal analysis notices distinctions and seeks clarification.

The fact that the privilege itself survives the tenure of a president does not, however, answer the more difficult question of who may assert that privilege. The two inquiries are often conflated, but distinct. After establishing that the privilege continues to cover the information after the president leaves office, the court in GSA assumed that the former president had some ability to assert executive privilege over that material, but it never explained why. Nor is the question an easy one. There is considerable weight to the argument that only the current president has the authority to assert executive privilege because the privilege itself derives from Article II of the Constitution and the separation of powers. A former president has no constitutional authority. As the GSA court noted, quoting the solicitor general, “the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic.” The incumbent president is the one who has been elected to represent the interests of the country and is, arguably, the only one with the constitutional authority to determine when disclosure would be in the country’s interests. The GSA decision largely elides this issue because the court had no opportunity to address the extent of a former president’s authority to assert executive privilege or how the views of the incumbent would factor into such an assertion. The suit did not involve an assertion of privilege over particular information; it was a facial challenge to the act itself. The court simply adopted the view that the privilege “survives” the presidency, accepted that Nixon had some continuing interest sufficient to bring the suit, and noted that “the fact that neither President Ford nor President Carter supports appellant’s claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch.”

Change the facts, change the outcome.  Would a claim of executive privilege by a former president survive if the Presidential Recordings and Materials Act was not involved?  According to this analysis, it couldn't be:  "The law was specifically designed to abrogate the agreement governing Nixon’s records and eliminate Nixon’s control of and ownership over the materials."  But I'm not sure that's entirely clear, or a strict limitation on the application of the Act

The Department of Justice and the U.S. Court of Appeals for the D.C. Circuit have interpreted GSA to provide a former president some authority to assert executive privilege and attempted to expound on a rationale to justify such a system. The Office of Legal Counsel (OLC) reasoned in a 2001 opinion that:

 although the privilege belongs to the Presidency as an institution and not to any individual President, the person who served as President at the time the documents in question were created is often particularly well situated to determine whether the documents are subject to a claim of executive privilege and, if so, to recommend that the privilege be asserted and the documents withheld from disclosure. 

OLC relied principally on a decision by the D.C. Circuit concluding that consultations between a former president and the archivist of the United States were exempt from disclosure under the Freedom of Information Act. In that opinion, citing GSA, a conservative panel of the court held that a “former President in this context can hardly be viewed as an ordinary private citizen” because he “retains aspects of his former role—most importantly, for current purposes, the authority to assert the executive privilege regarding Presidential communications.” Both the OLC opinion and the D.C. Circuit’s decision ultimately concluded that—in the respective statutory contexts at issue—a former president is not akin to a private party. But, like the Supreme Court’s opinion in GSA, neither of these opinions addresses a former president’s assertion of privilege over specific information or testimony that is not supported by the incumbent. 

Change the facts, change the outcome.  And the other question is:  can a President assert privilege to protect evidence of criminal behavior?  That's a question not addressed here, but it could be raised in any challenge by Trump to the release of records.

The historical test governing when executive privilege is appropriate requires the president to determine whether the release of specified information would be in the public interest. Even if it is true that a former president may have more information about the particular documents or testimony at issue, it is difficult to understand on what basis, in that circumstance, a former president has authority to decide what is in the public interest. A White House or agency official will often have much more information than the president about the nature of particular communications subject to a claim of executive privilege. But those officials have no authority to decide to withhold information to protect the public interest. That decision belongs to the president alone.  A former president no longer has any authority to make decisions about the public interest. In this case, the people chose to give that authority to Biden, not Trump, in the 2020 election.

And that is a loophole you could drive a Mack truck through; and likely one of the grounds Biden will use to release the documents to Congress.  The Congressional investigation is not a grand jury inquiry, but Congress is certainly entitled to access to information that "would be in the public interest."  It's not game,set, and match, but it's a damned good argument.

The proper interpretation of the GSA case and the role of former presidents has been a subject of controversy in executive orders governing the disposition of presidential records. In November 2001, President George W. Bush issued an executive order that gave former presidents the absolute right to assert executive privilege over their records and preclude their release by the archivist, who is now charged with maintaining presidential records. The Bush order stated that “the former President independently retains the right to assert constitutionally based privileges,” even if the incumbent president did not support the assertion. President Obama revoked that order on his first full day in office and restored the framework that had previously governed the records of living, former presidents. Under Obama’s order, the archivist first independently evaluates the records request and makes a recommendation. But ultimately, the archivist must “abide by any instructions given him by the incumbent President,” no matter what the former president has directed, and current regulations governing the disclosure of former presidents’ records to Congress allow the former president to assert privilege only when the incumbent president supports that assertion.

There is precedent for this, by the way:

This issue arose recently in the confirmation hearings of Brett Kavanaugh. Kavanaugh had served in the White House Counsel’s office during the George W. Bush administration. Thousands of presidential records held by the archivist were responsive to the congressional requests for information relating to the confirmation hearings. Attorneys for former president Bush reviewed all the records, erring “on the side of transparency and disclosure,” but they also provided those documents to the Trump White House and Department of Justice for review. Days before the hearings, the attorney for Bush informed the committee that the Trump administration had directed them to withhold more than 100,000 pages that reflected internal White House deliberations and presidential communications traditionally protected by executive privilege. The letter made clear the choice to withhold the information had been made by the incumbent president, not former president Bush.

Trump used it to hide; Biden can use it to disclose.  That door swings both ways, and only the President has the key to that door.  And we only have one President at a time.

This Lawfare analysis was written prior to Trump's second impeachment trial, and in the context of that pending trial.  This penultimate paragraph, however, is eerily prescient:

There is another—perhaps more immediately important—issue to consider as well. It is quite possible, indeed likely, that there will be congressional investigations into events that occurred during the Trump administration. Indeed, Senate Democrats have already sent a letter to the Justice Department directing it to preserve all documents and communications, including emails and text messages, related to Trump and Clark’s election-contest plan. In the course of some of those investigations, the committees may subpoena records or testimony not just from an executive branch agency but also from the Trump White House. Faced with such requests to the archivist for Trump’s presidential records, the Biden administration would have to weigh institutional interests in confidentiality—for which career officials would likely advocate—against intraparty pressure to release the information. After undertaking such an inquiry, it would not be surprising if the Biden administration determined that the congressional need for the information justified its release, despite its presumptive confidentiality. Trump, however, may disagree, and he may attempt to assert executive privilege to prevent the release of the materials, perhaps even suing the archivist if necessary to enjoin the release of the records on the basis of his assertion.

Whether or not this gets to the Supreme Court remains to be seen.  I would just point out that procedure plays an important role here.  That is, who does Trump sue, and what grounds do the pleadings raise?  The  newest suit against his niece and the NYT is not encouraging that he has top-flight lawyers working for him.  If Trump doesn't sue the right people in the right way, he should have his claims dismissed.  This is basically what the Supreme Court did when it ruled on the Texas abortion law case:  not the right action, not the right way.  They didn't dismiss in that case, just refused to allow an injunction to stand (enjoining who was still not a small question in that case, though the minority was right:  this statute is unconstitutional on its face).  Still, it should mean the Supremes will look askance at any case brought to them as poorly plead as Trump's latest civil suit.  Will Trump, for example, sue the archivist to enjoin release of the disputed records?

I guess we'll have to wait and see.