The Supreme Court today rejected the request of former President Donald Trump to block the release to Congress of documents related to the attack on Capitol Hill, January 6, 2021 and Trump’s role in instigating it. A congressional committee has requested the documents. This Supreme Court ruling affirms the DC Circuit’s earlier decision in favor of Trump and allows for the release of these documents.
However, the per curiam majority opinion leaves open the issue of whether former presidents might be able to use executive privilege to block releases of documents demanded by Congress in at least some future cases:
These are the questions [of]Whether or not What circumstances might a former president be eligible for a
Preventing the disclosure of privilege records by a court His tenure as president was hampered by the determination of the The privilege is waived by the incumbent PresidentDented items raise significant and serious concerns. It These cases were not decided by the Court of Appeals. Questions because It The President was rejected and analyzed Trump’s Privilege Claims “Under any of The Tests” [he]Advocated,” Trump v. Thompson, 20 F. 4th 10, 33 (CADC 2021), without regard to his status as a former President…The Court of Appeals ruled that PresiTrump’s dent claims would fail even if they were made by him In the case of incumbent, his former status as President is necessary The court’s decision was unaffected. Italics., at 33 (noting no “need [to]You can conclusively resolve whether or to what extent you have been expelled.At the request of an ex-President, tent a court” may be “second guess the sitting President’s” decision to release privileged documents)…. Any Court of Appeals discussion regarding President Trump’s status in the past President should be regarded therefore as non-binding dicta.
Justice Clarence Thomas said he would rule in Trump’s favor in this case but did not write an opinion.
Justice Brett Kavanaugh concurred in a statement that Trump shouldn’t be allowed to prevent the release of certain documents. However, ex-presidents should still be allowed to do this in some cases.
If the Presidents or their advisors believed that this was true, At the expiration of the privilege, the protections for the protected would end That their privileged communications might be used to the Presidency may have been disclosed by the President when he left office, or were they subject? to absolute control by a President after that. (Be a political enemy of an ex-President),Quences would be harsh for the Presidency. Without sufficientYou can be assured of quality Continue Privacy, Presidents Their advisers and they would be kept from participating in the Deliberations frank and open about effective discharge The President’s duties are dependent.
It is possible to invoke the Constitution by a former president, but it must be stated clearly Preference for presidential communications His Presidency doesn’t mean the privilege has been lost It cannot be overturned. Nixon’s Tests [v. United States]At 713 U. S. Nixon v. Senate Select Committee on Presidential Campaign Activities498 F.2d 725/731 (CADC 1975) (en banc) can be used to apply to a privilege claim of a former President as it does to a privilege claim of a current President. It could also be suggested that the power of privilege claims should decrease as time passes after the term ends for a former President.
Kavanaugh may be mistaken about this. Executive privilege, if it is even possible (though some scholars believe it doesn’t), is an office power that the president has and it can only be used by the individual who holds the office. After he has resigned, all power and privileges that were associated with his office are lost, except for those extended by Congress laws (e.g. – Pension rights and continued security provided by Secret Service In this instance, the Court of Appeals said that: “tHe is a privilege. Alle otherArticle II is a power that resides with “The current President”
It is not possible for a former president to continue to make executive orders, get ambassadors or be commander-in chief of the Armed Forces. Even if he believes he has to, he cannot continue to wield any of these powers to stop a successor embarrassing him. Executive privilege is the same. These powers expire with the end of the president’s term. He has the same executive power as any private citizen at that time.
This approach, according to Kavanaugh, and others, allows presidents to give out documents of predecessors in ways which might be embarrassing for the former. The fear of this eventuality could hinder current presidents’ discussions with their advisors. There are many things that incumbent presidents could do to embarrass their predecessors. These include reversing previous policies, making them look bad and blaming them. These things can both deter presidents from considering different policies and prevent advisers from suggesting a course of action.
The Constitution gives former presidents no general power to prevent their successors from doing things that may embarrass. While fear of embarrassment in the future can sometimes hinder good policies, it can also prevent them from being implemented. Were you doing something wrong?
The Constitution doesn’t grant any executive privilege to ex-presidents. They must be treated the same as all other citizens except for specific laws.
The Court essentially ruled in favor of the plaintiffs. The Court and DC Circuit both agree that the claim to executive privilege in this case should be rejected, even if it was made by an incumbent president. However, the Court will likely return to this issue in future cases.