The progressive crusade to bring down Donald Trump by any means necessary continues to damage the Office of the President and the Constitution’s separation of powers. New York prosecutors succeeded in subpoenaing a sitting president — and thereby interfering with his ability to carry out his duties — all for the sake of indicting a single Trump Organization official for under-reporting taxes.
Now the Biden administration has inflicted even more damage on the Presidency by waiving Trump’s constitutional right to confidential communications with his closest aides.
On January 23, 2021, Senate Judiciary Committee Democrats sent a letter to the Department of Justice demanding production of documents concerning meetings and communications between Trump and high-ranking Justice Department officials regarding election fraud. House and the Senate committees subsequently followed up with subpoenas for a slew of top former Justice Department officials, such as Acting Attorney General Jeffrey Rosen, assistant attorney general Jeffrey Clark, and U.S. Attorneys in Georgia and New York.
In normal times, the Justice Department would immediately reject these demands. Article II of the Constitution specifies, after all, that the President "may require the Opinion" from his principal officers "upon any Subject relating to the Duties of their respective offices."
Ever since President George Washington refused to share documents with the House about the Jay Treaty, the Executive Branch has asserted the need to keep confidential documents and information that reflect presidential decision-making and deliberation. In Nixon v. United States, the Supreme Court recognized that the President must enjoy an executive privilege in order to receive the full and frank advice of top officials in order to effectively discharge his constitutional duties.
More recently, the D.C. federal court has recognized that "history and legal precedent teach that documents from a former or an incumbent President are presumptively privileged." The Supreme Court has only recognized an exception when a criminal defendant’s own constitutional right to information conflicts with the President’s right to confidentiality. Then—and only then—has the Court sought to balance the two competing rights by intruding only as necessary on the claim of privilege.
Congress’s demands for documents and subpoenas for testimony are more far-reaching and much more destructive to the separation of powers. While Congress has a right to investigate the events leading to the terrible riot of January 6, it does not have a right to override the constitutional prerogatives of an independent branch of government.
If Congress has the right to demand presidential documents and discussions at will, it could just as easily force the Justices of the Supreme Court to reveal their deliberations about the electoral fraud cases brought after the November 3 elections, too.
Imagine the howls from Capitol Hill if the Trump Justice Department had issued subpoenas to Nancy Pelosi to obtain internal documents and communications between her and her top legislative advisors about threat assessments provided in the run-up to the January 6 joint meeting of Congress.
To make matters worse, the Biden administration has waived any claim of privilege enjoyed by Trump and his top advisors. The privilege belongs to the incumbent President, it asserted, with barely a nod to the threat to the internal deliberations of all future presidents, and with little heed to the Supreme Court’s finding that the privilege extends to former as well as incumbent presidents.
The Department’s new position, which appears to be based on political animosity toward the former president, is a terrible (and in our view unconstitutional) idea. That privilege exists not for the personal benefit of a president as an individual but for the benefit of the Republic. As the Carter administration argued in a 1977 case dealing with President Nixon’s presidential papers, "Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends." The privilege must extend beyond a president’s tenure lest all future Presidents find their top advisors unwilling to provide the full and candid advice necessary for effective policymaking.
DOJ’s purported waiver is also a terrible idea for our nation’s politics. Our country has regularly chosen Presidents of opposing political parties to follow each other. Joe Biden (D) followed Donald Trump (R), Barack Obama (D), George W. Bush (R), Bill Clinton (D), and George H.W. Bush (R).
Should the Department’s politically-motivated waiver of privilege go unchallenged, we can expect to see tit-for-tat waivers every time a new administration from a different political party comes into office. Such political "gotcha" is hardly conducive to resolving our political divide, and will likely exacerbate it to the point of undermining our political institutions.
The Department of Justice needs to withdraw its waiver of executive privilege, and if it does not, the former president needs to assert it himself and, if need be, litigate to protect the executive privilege not just for himself but for future presidents—the long-term good of the Republic demands no less.