Courts Should Support Trump’s Claims of Executive Privilege

The media are still giving prominence to the January 6, attack upon the Capitol.  When the House of Representatives wrote articles of impeachment against then former President Trump, they were sent to the Senate.  I thought perhaps the Senate would refuse to try the case against a president who was no longer in office, but instead it was given full political satisfaction with only modest change in procedure.  After all, it was going to require a super-majority of Senate votes to find the former president guilty, and both parties had exactly the same number of votes; 50:50.  As predicted, the impeachment vote failed; eighty-six percent of Republicans voted for Trump’s acquittal.  The vote was 57-43.  

Now, on the same subject as the impeachment trial, the Democratic majority in the House of Representatives has appointed a Committee of Representatives with a majority of Democratic Party members to investigate the January 6, attack on the Capitol.  The Committee was given subpoena power by the full House and has exercised it by calling witnesses and ordering various documents to be submitted.  Among the witnesses actually called is Steve Bannon, who was an informal adviser, outside of the government, and who formally resigned his position as a political advisor to the President more than three years ago.  It would seem clearly that there would be zero probability of his having knowledge about any matter that had not yet existed during his period of advice-giving.  However, recent media reports indicate The Trump Campaign has paid for a group of lawyers and Steve Bannon (who is not a lawyer) to establish a Command Center in the Willard hotel during the period from January 3, through January 8 to establish strategy for undoing the Electoral College vote that occurred on January 6.  That is the final political step required before the formal inauguration of President-Elect Biden and Vice President-Elect Harris on January 20 as duly elected President and Vice President.  The lawyers who were participants in the Command Center probably have unassailable immunity from having to testify as lawyer-client privilege, but Steve Bannon would not be so privileged, whether he played any role, or not.  

By the same line of reasoning that I believe former president Trump should not have been impeached because he was not then president.  Similarly, he is no longer president, an essential fact for exercising presidential power for the same reason that I can’t either, I’m not president.  Just because the Senate voted to accept the impeachment documents produced by the House of Representatives, doesn’t mean that the Senate necessarily believed they were required to conduct a trial.  They may have considered the impeachment a political show, and to hear the case and acquit the president showed rejection of the political act.  The vote then better reflect rejection of that political act, to acquit President Trump for his political act, and not for the misdemeanor charged.  Who knows the truth; there was no trial about the truth.  

At this point, we have a political show by a political committee of the political House of Representatives composed of a majority of Democrats.  They have followed the procedures of due process, which makes the present situation lawful.  President Trump exercised post-presidential executive privilege.  Nixon did the same in his claim that Watergate papers were subject to executive privilege after he had resigned.  The Supreme Court ruled that Nixon was entitled to claim executive privilege.   We don’t know what the reasoning of the Court was that permitted the ex-president to lawfully exercise power that his successor had responsibility to exercise.  Maybe the Court wanted to postpone the question; was there something important yet to be determined.  Eventually, the Supreme Court ruled that Nixon’s papers and other information (tapes) had to be turned over.  What brought the tapes into the purview of the Court was personal testimony by an executive officer revealing there were tapes of Executive Office conversations. The fact that an ex-president exercised executive privilege doesn’t mean that deference will be given to that claim by the Court in the course of the conduct of the case which is what occurred with Nixon. 

We also know that in the Nixon situation, Presidents Ford and Carter in periods of time after Nixon resigned, each waived executive privilege of Presidential files.  Those succeeding presidents did not support Nixon’s claim to executive privilege, and the Court ultimately took that information into effect in its decision against Nixon’s claim of executive privilege.  

President Biden has waived executive privilege.  It will be surprising if ex-President Trump obtains deference from the Supreme Court for his order of executive privilege in the final outcome.                                                                                        October 25, 2021