And the Supreme Court is okay with that.
About the author: Jonathan Shaub is a constitutional law professor at the University of Kentucky J. David Rosenberg School of Law and a contributing editor at Lawfare.
In a decision late yesterday, the Supreme Court ruled that former President Donald Trump had no power to assert executive privilege to prevent the National Archives from turning over hundreds of pages of documents to the House committee investigating the events of January 6, 2021. The Court was right to do so; executive privilege permits a president to withhold information only when disclosure would harm the public interest. But Trump is not president, and thus has no authority to act in the public interest. Moreover, as the D.C. Circuit explained in its decision, the public interest here favors disclosure, given the January 6 committee’s “compelling need” for this information and the “unique and extraordinary circumstances” of the “unprecedented attack on the Capitol and the tradition of peaceful transfers of power.”
But the Supreme Court’s cryptic two-page order goes out of its way to avoid establishing any law. The Court wrote that the questions raised by Trump about a former president’s authority to assert privilege are “unprecedented and raise serious and substantial concerns.” It then proceeded not only to decline to address those questions but also to take the affirmative and extremely uncommon step of instructing government officials and the courts to disregard the central point of the D.C. Circuit’s legal analysis as “nonbinding dicta.” In judicial parlance, dicta is, by definition, not law. The Court denominated the D.C. Circuit’s complex, intricate legal analysis of a difficult constitutional issue as nothing more than a bunch of unnecessary words. In doing so, the opinion both acknowledges and exacerbates a fundamental problem about executive privilege that has been lurking uncomfortably in the background of the January 6 investigation: The term executive privilege has no legal content. There is no law governing executive privilege.
Over the past several months, I have been repeatedly asked questions related to executive privilege that seem straightforward: “Does a former president have the ability to assert executive privilege?” “Will the Justice Department prosecute for contempt of Congress?” “Executive privilege does not apply to a private citizen, does it?” I have given the best answers I can based on my previous experience working on privilege matters at the Office of Legal Counsel (OLC), the team of lawyers at the Department of Justice that advises the president on matters of constitutional law, and my more recent research into and writing on executive privilege. But that response invariably begins, “There is not really a simple answer because …”
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In fact, it’s not that there are no simple answers; it’s that there are no answers. Period. OLC opinions set forth one comprehensive, executive-power-friendly constitutional view. Congress has, unsurprisingly, adopted a completely contrary position. And the scarce judicial precedent provides no answers. Moreover, each new scenario—such as the unprecedented events of January 6—presents factual distinctions that thwart easy historical analogy.
Executive privilege, as it works in practice, does not operate as a form of “law.” The breadth of disagreement about the scope of the constitutional doctrine and the malleability of the few relevant judicial precedents allow lawyers and government officials to use privilege to justify whatever position is in their self-interest. If the last few years of the Trump administration did not demonstrate that, then the January 6 committee’s investigation has made it undeniable.
As a law professor who writes and teaches about constitutional law and executive privilege, I do not make that claim lightly. Law means different things to different people. In the famous “bad man” thought experiment of Justice Oliver Wendell Holmes, “law” means only rules that have “material consequences” for someone who breaks them, and has no inherent moral or ethical force. Others argue that law includes an “internal point of view” pursuant to which individuals and judges decide—and follow—the obligations of the law because they believe that adherence to those obligations is required. Or some might prefer William Blackstone’s definition of law as a “rule of action” prescribed by a “superior” authority.
Under any of these conceptions of law, however, executive privilege is lawless. In disputes over access to information, at least two entities claim to be “superior”—Congress and the president (and, currently, the former president as well). These superiors prescribe directly contrary “rules of action.” The inferior then has to choose which “law” to follow; following both is impossible. Mark Meadows’s on-again-off-again relationship with the January 6 committee represented a very public example of this choice. He initially “engaged” with the committee, but then refused to comply with its subpoena entirely on the basis of executive privilege and the related doctrine of testimonial immunity for senior presidential aides. After those claims were disputed—and after news broke of his book, which described otherwise privileged conversations with the president in detail—Meadows again chose to start cooperating. But he shortly thereafter ceased to cooperate yet again, claiming that the committee was violating privilege. Meadows, like other executive-branch witnesses before him, faced conflicting directions from Congress and his superior. Meadows had to choose which “law” to follow.
Holmes’s “bad man” theory also doesn’t provide clarity about what the “law” is in these privilege disputes. None of the officials who have defied congressional subpoenas during the past six presidential administrations has faced any consequence. And courts have almost never had the opportunity to issue timely decisions. By referring Meadows, Steve Bannon, and potentially others for criminal contempt of Congress, the January 6 committee is hoping to change that calculus for Holmesian “bad men.” But, as George Terwilliger, Meadows’s attorney, has made clear, those witnesses have a number of defenses that make the success of the threatened sanction far from certain. And that possible sanction exists only because the dispute involves Congress and a former president whose claim is not supported by the incumbent president of a different party. In every other case, no such sanction is available.
Some may argue that executive privilege inherently imposes certain legal obligations despite the lack of any enforcement mechanisms. The functioning of the country and Constitution often depends on the willingness of the president and government officials to abide by such obligations, even when there is no possibility of judicial review. Indeed, scholars have argued that presidents have a duty to exercise their constitutional authority in accordance with a good-faith understanding of their constitutional authority. But even that internally focused understanding of law does not provide answers on executive privilege. Both the executive branch and Congress start from the Constitution and give great weight to the few relevant judicial decisions on the subject, the only real law that does exist. The problem, however, is that the two branches interpret the Constitution and these decisions to reach directly contradictory conclusions about what obligations the “law” of executive privilege imposes. And because the courts almost never have the chance to resolve these fundamental constitutional disagreements, each branch persists in its good-faith interpretation of its own constitutional authority and rejects the other branch’s inconsistent positions.
There is not even agreement about what executive privilege is. In some formulations, executive privilege refers to the nature of the documents at issue—the presidential communications in United States v. Nixon, for example. In the executive branch’s view, the privilege is not a status inherent in the documents but an implied constitutional prerogative belonging to the president to control the dissemination and disclosure of a wide swath of information. I have argued that executive privilege is best understood historically as an immunity that establishes a specific limit on Congress’s legislative-oversight authority, and other scholars describe it as “the right of the president and high-level White House officials to withhold information from Congress, the judiciary, and ultimately the public.”
This inherent ambiguity and disagreement has led directly to the absurdities faced by the January 6 committee and Congress more generally. Bannon, a private citizen who does not appear to have been advising Trump about anything remotely touching on Trump’s constitutional duties in the days leading up to January 6, asserted a belief that he could follow Trump’s directive not to testify, because of executive privilege. Jeffrey Clark, a former acting assistant attorney general who was authorized to testify by the Department of Justice and, seemingly, by Trump himself, also initially claimed executive privilege. Terwilliger, a former deputy attorney general, proclaimed confidently in the pages of The Washington Post that Joe Biden’s refusal to assist Meadows “fl[ies] in the face of 200 years of history” of executive privilege. Trump himself sued the committee and the archivist of the United States, arguing that he, as former president, had the ultimate authority to control the release of presidential records. He did so despite an exhaustive statutory scheme, a presidential executive order, and comprehensive regulations—all of which are typically understood to constitute “law”—that explicitly state that he has no such authority. And Peter Navarro, Trump’s former trade adviser, now claims that he cannot provide information about the government’s response to COVID-19, because of, yes, executive privilege.
The shocking thing about these claims is not that they are being made. Lawyers can, and should, make available reasonable arguments as part of their zealous duty to their clients. The shocking thing is that these arguments are available.
Executive privilege today is amorphous and unprincipled. But most reform proposals—including the push to reinvigorate Congress’s long-dormant inherent-contempt authority—misunderstand the degree to which executive privilege can be used as a shield to deflect direct statutory or congressional encroachment. Most proposed alternatives to judicial review would, in reality, provide “law” only for one institution, Congress. The executive branch considers executive privilege to be a constitutional doctrine that cannot be abridged by statute or overcome by assertions of inherent authority. The OLC opinion supporting former White House Counsel Don McGahn’s refusal to testify, for example, concluded that Congress could not constitutionally exercise its inherent-contempt power against McGahn. And thus McGahn refused to testify, following that “law”—an OLC memo.
But executive privilege does not have to remain lawless. One—and, in my view, the only—effective means to provide legal content to executive privilege is to facilitate judicial review of the fundamental constitutional disagreements between the branches—an opinion I presented to the Senate Judiciary Committee in August 2021. Legislation that explicitly authorizes congressional entities to file lawsuits, that speeds up the process when these cases are brought, and that eliminates some of the layers of appellate review that slow many of these cases down would allow courts to decide cases involving executive privilege more often and start to establish a legal framework to guide future disputes. Courts should not necessarily be put in the position of reviewing every document and deciding whether it should be disclosed. But they are the only entity that can provide some common ground about what the constitutional rules governing executive privilege are.
Present circumstances offer a rare window for pursuing that option. The Protecting Our Democracy Act, which recently passed the House, includes provisions that would expedite judicial review and otherwise remove potential hurdles to it in cases involving executive privilege.
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To date, the courts have largely been unable to perform this function, because the cases have taken too long and many have become moot before any appellate decision could be made about the nature of and legal standards governing executive privilege. Congress has considered this type of legislation before, however, as early as the 1950s and extensively in the aftermath of Watergate. Often the executive branch objects, and the legislation fades away, along with the memories of the events that led to its consideration. After initial skepticism, however, the current White House has, somewhat surprisingly, expressed support for the proposed legislation.
To be clear, the courts would rather not wrestle with these issues. One need only look to the Supreme Court’s decision yesterday to see that. The U.S. Court of Appeals for the D.C. Circuit spent 68 pages analyzing the novel constitutional question of a former president’s statutory and constitutional rights concerning executive privilege and presidential records. And the Supreme Court—with what can be described only as enviable dexterity—told the world to ignore that. Presumably, it did so because there was both internal disagreement about the validity of the D.C. Circuit’s resolution of that question—which Justice Brett Kavanaugh expressed in his concurrence—and a decisive majority that did not wish to wrestle with that constitutional question in the context of Trump and the events of January 6. Other courts have employed such devices to avoid deciding questions of privilege in the past.
But the judiciary’s authority to control the cases it hears is limited. If a justiciable dispute arises and progresses to the merits in a timely manner, courts will at times be forced to render a decision. That is why statutory reforms that explicitly authorize and expedite judicial review of privilege disputes—reforms such as those included in the Protecting Our Democracy Act—must be the mechanism for providing legal content to the concept of executive privilege. As the D.C. Circuit reluctantly recognized in the late 1970s, in what remains one of the few judicial precedents on executive privilege, when a dispute involves a “clash of absolutes” between two competing branches of government, it is “necessary for th[e] Court to consider the conflicting claims of the parties to absolute [constitutional] authority.” Without judicial intervention, those conflicting claims remain and negate any productive discussion of the “law” governing executive privilege.
The January 6 committee appears to have failed to in its attempts to persuade, coerce, or compel Bannon, Meadows, and other recalcitrant witnesses to provide information—because of executive privilege. It has now succeeded in obtaining presidential records, largely because of the cooperation of the Biden White House. But the Supreme Court, by declaring a former president’s authority to assert privilege an unsettled and difficult constitutional question, will be used to validate the arguments of Bannon, Meadows, and others who continue to look to Trump for their “law.” The D.C. Circuit had determined that Trump had no authority to assert executive privilege to shield those individuals from testimony. But the Supreme Court’s decision sweeps that aspect of the D.C. Circuit opinion away as “nonbinding dicta” and allows those individuals to continue to choose which version of the unsettled law suits their purposes. Despite the committee’s strenuous efforts, its inability to impose any legal obligation or sanction on these former Trump officials is but the latest, high-profile evidence that executive privilege today is lawless. No law supports their claims; yet they have thus far prevailed.
This state of affairs does not have to continue. If the committee’s prominent failure provides additional momentum for legislation seeking to remedy that lawlessness by prioritizing and facilitating judicial decisions on executive privilege, that may ultimately be a success attributable to the January 6 investigation.
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