Whether the seizure of classified documents during the FBI’s recent raid on former President Donald Trump’s Florida residence allows the former president to claim presidential privilege or the right to protect the documents from disclosure. There has been a new discussion about
Under the Presidential Records Act, the president’s records belong to the government and must be turned over to the National Archives and Records Administration at the end of the president’s term.
The FBI is investigating how hundreds of pages of documents, some classified as classified, leaked to Mar-a-Lago after Trump left the White House in January 2021.
Trump has called the documents “probably privileged” and asked a federal judge to stop the FBI from reviewing the records while an independent third-party evaluation is underway.
Trump’s allegations are baseless. In 1977, the Supreme Court recognized the former president’s right to claim privileges over certain private communications, and a year later, the Presidential Records Act affirmed that right.
But Trump’s claim of presidential privilege in this case is highly unusual. Legal experts say no former president has ever attempted to block a current president from obtaining presidential records from the National Archives.
“As far as I know, it’s never been done,” said Gary Schmidt, a senior fellow at conservative think tank American Enterprise Institute.
Let’s take a look at the debate over presidential privilege and Trump’s claims.
What are Executive Privileges?
It is the President’s right to keep classified communications and other Presidential records confidential. The idea is that the president needs candid counsel to carry out his duties, and that candor by his advisers requires a promise of confidentiality.
Although the practice is not explicitly mentioned in the Constitution, the Supreme Court recognizes presidential prerogatives to keep certain records confidential. , and “deliberative” correspondence within the agency, covering three categories of documents and correspondence.
The principle is nothing new. Presidents back to George Washington have, in one way or another, claimed the privilege of withholding information. But it wasn’t until the 1970s that the Supreme Court intervened in the matter.
In 1974, then-President Richard Nixon refused to release the White House recordings sought by the special counsel and seven defendants in the Watergate scandal, claiming that executive privilege allowed them to withhold sensitive information. Rejected.
The Supreme Court ordered Nixon to surrender the tapes while granting him the “privilege of confidentiality of presidential communications.”
Do former presidents have the right to claim executive privileges?
This issue has been the subject of some debate among academics. Some legal experts, citing his landmark 1977 Supreme Court case on the constitutionality of the law that ordered Nixon to hand over White House tapes and other records to government agencies, said: It argues that former presidents have the implicit power to claim executive privileges.
In a case known as Nixon v. Administrator of General Services, the Supreme Court rejected the government’s assertion that “only a sitting president could make such a claim,” noting that “Nixon, as a former president, has also been heard to make such a claim.” It can be done,” he said. they. ”
The reasons for privileging former presidents are the same as incumbent presidents. If your aides believe that the president’s executive privileges end with the presidency, so will the debate, and they will be reluctant to offer outspoken advice.
However, other scholars point out that Supreme Court rulings were made before Congress enacted the Presidential Records Act of 1978, giving sitting presidents final authority to exercise the privilege.
The Presidential Records Act recognizes executive privileges for former presidents, Schmidt said, but in the event of a dispute between a former president and a sitting president, it is the current occupants of White House powers that matter. .
“Previous presidents can certainly claim executive privilege, but a sitting president has constitutional powers and a constitutional responsibility to determine whether those claims are appropriate,” Schmidt said.
What about Trump’s claims of presidential privilege over documents found in Mar-a-Lago?
A year and a half after leaving the White House, Mr. Trump has asserted presidential privilege several times.
The first was last year when a U.S. House committee investigating the January 6, 2021 attack on the U.S. Capitol asked the National Archives for President Trump’s White House records.
Second, earlier this year, the National Archives told Trump’s lawyers that it wanted to turn over certain classified documents to the FBI.
Most recently, the former president made allegations after the FBI removed a box of documents from his residence during an August 8 raid.
Trump’s first two attempts failed.
In a lawsuit over a congressional committee record request, the Biden administration challenged Trump’s claim of “communication privilege,” to which a federal court agreed. It wasn’t because of Trump’s “former presidential status.”
In the second case, Trump’s attorney asked the National Archives for additional time to review the records before they were turned over to the FBI. The attorneys wanted to “determine whether a particular document qualifies for privilege” and give Trump the opportunity to “claim a constitutional privilege claim.”
Citing the Department of Justice, the archivist said, “There is no precedent for a former president to claim executive privileges against a sitting president to prevent him from obtaining government records from the National Archives.” He rejected Trump’s request, citing the opinion that
Trump’s claim of presidential privilege over documents obtained from Mar-a-Lago remains unresolved. If a federal judge honors Trump’s request for a “special master” to review the documents, the former president could decide to claim executive privilege over some records. The Justice Department dismissed Trump’s request as unnecessary, stating in a document filed late Tuesday that the former president’s assertion of executive privilege “was made in this case by an executive officer who performs core executive functions. It would fail here, as it involves the recovery and review of enforcement records by.
What makes Trump’s assertion of presidential privilege unusual is that he is claiming it against the current president, said Michael Stern, a former congressional attorney who has written about legal issues affecting Congress. Stated.
“Historically, the issue has been raised that outside parties, such as Congress and the general public, are seeking information and ex-presidents may claim presidential privilege in that context,” Stern said.
“The idea that the current president would need access to his predecessor’s presidential record, and that predecessor would try to stop him, has hitherto been thought very little.” It’s the most extreme view and I think it’s a very short lifespan.”