It looks like ex-president has the right to claim executive privilege for conversations they had

[Claustrum]

during their term.

Since a few posters and video claimed that ex-president cannot use executive privilege for conversations during his/her term, I personally disagree with the rational even though I think Trump is using the executive privilege wrong. I've asked a few times if my assumption is correct but got no direct answer. I went to do some digging on google. The answer seem to be a gray one, at least it is not tested in court yet. Here is an article from lawfare:

https://www.lawfareblog.com/can-former-president-assert-executive-privilege-impeachment-trial

The article seem to suggest it hasn't been tested in court yet but it appears that ex-president can in fact claim executive privilege for conversations during his/her term (unlike some people's on DU and youtube's argument). Here are some relevant points from the article.

In November 2001, President George W. Bush issued an executive order that gave former presidents the absolute right to assert executive privilege over their records and preclude their release by the archivist, who is now charged with maintaining presidential records.

After establishing that the privilege continues to cover the information after the president leaves office, the court in GSA assumed that the former president had some ability to assert executive privilege over that material, but it never explained why. Nor is the question an easy one. There is considerable weight to the argument that only the current president has the authority to assert executive privilege because the privilege itself derives from Article II of the Constitution and the separation of powers. A former president has no constitutional authority.

Edit:

Here is another one that specifically says ex-president can claim executive privilege if he applied it correctly:

https://www.americanprogress.org/issues/courts/news/2010/06/01/7909/executive-privilege-101/

Who can claim executive privilege?
Either the sitting president or a former president during whose term an allegedly privileged document was created may assert executive privilege.

Is this article correct?

I am simply raising this issue because the last thing I want is someone using the wrong rational and easily disputed by a Trumpist and then get ignored even though the premise/conclusion is correct.

[secondwind]

1. I think I heard today that it depends on what the conversation is about...

[Claustrum]

5. Right, like I said, I think Trump is applying it incorrectly and he is using it

as a get out of jail blanket card.

My objection is simply with some people's argument that Trump no longer has the right to claim executive privilege because he is no longer president.

[Kingofalldems]

2. If the records are released what's Trump gonna do?

[MarineCombatEngineer]

4. Oh, you know, the usual,

rant, rave and froth at the mouth about this and that while making no sense at all.

[jcgoldie]

3. dont think so

The constitutional lawyers that Ive seen weigh in on the matter have argued that executive privilege exists for the good of the public not the person of the president therefor Joe Biden would have the authority to make that decision not an out of office president.

[Claustrum]

7. Do you have any article or the name of the constitutional laywer that said it?

It seems to run directly opposite to the articles I found. They seem to suggest it's a gray area that isn't tested in court. But there is no right answer yet to it.

[jcgoldie]

12. watch the segment on executive privilege from Nicole's show today

https://www.msnbc.com/deadline-white-house

[Bev54]

6. For conversations in the duty of his office, it is the office of the president that has privilege

not for conversations for the benefit of the man/woman in office. He does not have privilege if it is the benefit of the nation to make the conversations public. Planning and carrying out an insurrection is not the duty of the president but the conversations being made public is a benefit of the nation, to ensure this could never happen again.

[Hoyt]

8. It will be tied up for years, and it's unlikely there is anything in writing

that implicates trump, etc., although we all saw it.

[PSPS]

9. Doesn't matter either way. They're all going to skate. That's the way "justice" rolls in the US.

[mia]

14. Well said.

Just more fodder to sell "medicines" that nobody needs.

[PortTack]

19. Bannon didn't skate, the ones that mueller charged didn't skate. Did some of them get wrongful

Pardons...yes.
But they didn’t skate

[PSPS]

42. I must have missed Bannon's stint in the joint. Please enlighten me. Otherwise, he skated.

Hint: Saying that he would have gone to the slammer except for dying before trial, hung jury, jury tampering or nullification, escape, witness intimidation, bribes, bad prosecutor, or a pardon is still skating. In other words, if you don't lose your liberty, you've skated.

[PortTack]

47. He was indicted for the scam wall funding. Had he not been wrongly pardoned he would have

Gone to jail. The entire implication here is that the 1/6 committee will not act. They did the work indicted him and so no they didn’t let him skate.

[PSPS]

55. LOL. I left "had he not been..." off my list. He skated.

As The Duke Brothers would say, "I'll bet you one dollar that he'll skate on this whole thing." LOL.

[Effete Snob]

10. Privileges come in different flavors

For example, the attorney-client privilege outlasts the attorney-client privilege, and the priest-penitent privilege outlasts one’s membership in the religion.

Other privileges are conditional. For example, the spousal privilege depends on whether the spouse wants to testify or not.

This one hasn’t been tested.

[hlthe2b]

11. The first thing to realize iss that Executive Privilege is a QUALIFIED privilege & not an ABSOLUTE

privilege. Essentially, the doctrine is a balancing test, as Chief Justice Burger articulated in United States v. Nixon. The chief justice recognized that to be effective, a president needed to be able to consult with his advisers and that, to get the right kind of advice, he had to have some level of confidence that advice would remain confidential, or else people might withhold their advice for fear of it getting out--WHILE IN OFFICE.

Given the issue falls to questions of conversations of a FORMER PRESIDENT, whose attempt to block revelation of communications through a PRIOR EXECUTIVE PRIVILEGE can function instead as an obstruction of justice in the attempt to reveal those behind an attempt to subvert the constitution, the public's interest would surely invalidate any such attempt in any prior SCOTUS.

We shall see.

[Claustrum]

23. That seems to run contrary to the poster below you.

I will quote him here:

From Nixon v. Administrator of General Services, 433 US 425 (1977)

"it is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them."

This looks like such a gray area that at least we shouldn't use this rational that Trump is an ex-president so he has no right to claim executive privilege. All I am trying to do is to make sure I or people on DU don't use the wrong rational and easily get disputed by a Trumpist.

[hlthe2b]

31. No. It is not counter at all. Even for an in-office President, EP is QUALIFIED, not ABSOLUTE

that is the very basis of the case in US v Nixon. And, the illegalities being explored "trumped" (pardon pun) the justification for any consideration under EP.

While the issue of ANY EP AFTER office has not been fully litigated, that is NOT to say there is not SCOTUS case law-- i.e., the case of Nixon v. General Services Administration, Nixon tried to sue the GSA to prevent release of records AFTER leaving office.

Here, as explained by Harvard constitutional professor and former White House Counsel, Neil Eggleston:

"Congress had passed a law to allow the GSA to seize and preserve all President Nixon’s presidential records. President Nixon sued, claiming the act was unconstitutional. The Supreme Court upheld the law and basically decided that the current president is the right person to make judgments about the assertion of executive privilege. That’s because under our system, the authority attaches to the office, not the human. President Biden has this power because he’s president, not because he’s Joe Biden. And when President Trump was in office, he had the power because he was President Trump, not because he was Donald Trump. So, I think the law is pretty well settled. But again, we have many years later a very new Supreme Court."

I never said he could not assert a case--that is the part that is not fully litigated. Asserting EP and the court upholding that assertion are two different things. But, again with the prior case law that clearly designated the OFFICE and not the individual as the holder of EP AND that EP is not ABSOLUTE in ANY CASE, Trump should lose handily (and would in a prior comprised court). Obviously, we have five ideologues who may choose to ignore precedence. So, there are no certainties on this or any other issue before SCOTUS. Still for them to ignore such prior determinations would add to the erosion of SCOTUS--something one would presume still matters for SOME of them.

[Claustrum]

33. Thank you for your detailed explanation.

As you pointed out, I clearly confused myself with an ex-president's right to claim executive privilege verses a current president given more weight trumping the ex-president's claim of executive privilege.

So in essence, Trump has the right to claim executive privilege on those documents but, at least according to the case law you cited, the court will give more weight to the current president's decision over the ex-president. The question is whether the current supreme court will follow the precedent in that case law.

[onenote]

13. The Supreme Court has held that a former president has standing to assert EP

From Nixon v. Administrator of General Services, 433 US 425 (1977)

"it is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them."

Note that the decision says that the former president "also" may assert EP. Ultimately, where the incumbent and the former president disagree, the courts will have to resolve the matter; it is expected that the sitting president's view will be given greater weight, but its not a foregone conclusion. For example, imagine if Trump had decided to release conversations between Obama and his advisers over Obama's objections, for no other reason than to embarrass Obama or those advisors in some way. Should a court allow it? it should take compelling circumstances - such as those that I believe exist in the current situation -- to overcome an assertion of EP by a former president since the goal of EP is to allow Presidents the benefit of unfiltered advice.

[Claustrum]

16. Thank you.

This is what I think is the most relevant. Once again, I am not arguing that Trump is right on claiming "executive privilege" in this instance. My problem was from the fact some people said Trump is an ex-president and thus no longer has or can claim executive privilege, which is incorrect.

It's clearly that Bannon doesn't fall under "executive privilege" because he is not employed in the official capacity. But there are many threads that argued with the wrong rational and I wanted to make sure I got the fact straight.

[onenote]

18. I'm not sure that Bannon's status would be determinative in and of itself.

I'm unaware of any decision that resolves whether a president can assert EP with respect to communications he has with "informal" advisers that are not government employees at the time.

[hlthe2b]

32. You would do well to read Neil Eggleston's take on this from WAPO, which Laurence Tribe likewise

echoes. I cited quite a bit of his analysis in my previous posts, as has someone downstream.

[onenote]

45. And Eggleston and Tribe would do well to address this unambiguous statements of the Supreme Court

in Nixon v. GSA:


"it is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them."

The Court went on to say:"we think that the Solicitor General states the sounder view, and we adopt it:

"This Court held in United States v. Nixon . . . that the privilege is necessary to provide the confidentiality required for the President's conduct of office. Unless he 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 confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure."

Ultimately, as that case makes clear, where the incumbent president disagrees with the former president, the incumbent's views as to whether the privilege is appropriate are entitled to great weight. But it simply is wrong -- clearly -- to say that Trump cannot assert executive privilege. The courts may (and should) reject that claim, but not on the grounds that he has no standing to make it.

[Karma13612]

48. Well we all know that

What the SCOTUS says these days can easily override the past.

Then again, if it helps Their Trump, then they will no doubt side with twisted injustice to help him.

[hlthe2b]

49. They DID just that!

Obviously, you may fancy yourself to be more of a constitutional expert than either Tribe or Eggleston, but really?

[onenote]

50. Where did they do "just that"?

Tribe suggests that Trump can't assert EP because he's not president, stating: "Executive privilege is for the incumbent chief executive to assert. That statement is directly contradicted by the GSA case, to which Tribe makes no reference.

Eggleston also fails to acknowledge, let alone cite, the clear statements from the Supreme Court that a former president can assert EP. Instead, he suggests that the Court decided in GSA "that the current president is the right person to make judgments about the assertion of executive privilege." In fact, while the Court acknowledged that an incumbent president's opposition to a former president's claim of executive privilege "detracts" from the weight of the former president's EP claim, but the Court nowhere states, or even suggests, that the position of the incumbent is, in and of itself, determinative of whether that claim will or won't be upheld.

And I suspect that both Eggleston and Tribe actually know this. Imagine a scenario where Trump had decided to willy-nilly release Obama communications with Biden and Obama, as former president had objected on EP grounds. The issue wouldn't be resolved against Obama simply because Trump was the incumbent. It would be resolved on the strength or weakness of the argument that the release of the material served an overriding public interest -- the standard that Biden has cited in rejecting Trump's claim and the standard that should be applied in resolving this dispute.

[hlthe2b]

51. Had you read the full piece & others you'd know these ACTUAL consitutional experts acknowledged that

and went on to clarify. But, of course, everyone here should listen to YOUR impressions of constitutional law, not Tribe, Eggleston, Katyal, Vladeck, Chemerinsky, Karlan... Had you read through all my posts you'd realize that you are arguing about nothing substantively different.

Bye now. I am happy to discuss actual substantive differences, but I find those who fail to fully read or accurately convey the positions of the leading experts in constitutional law inexplicable and motives at least questionable. Nor, btw, do I intend to address the addled writings of a Dershowitz or Jonathan Turley that may ultimately get posted here by those who don't know better.

[onenote]

54. I did read the full piece and again ask you to point to where they acknowledge

the key holding of the GSA case -- namely that the Supreme Court has definitively stated that a former president can assert EP.

I'm waiting.....

All of the experts are correct in stating that Trump should lose. But the reason he should lose isn't that he doesn't have any right to claim EP or even that Biden's opposition automatically overrides that claim. Trump will lose because Biden's position carries more weight and because of the nature of the materials being sought.

[Me.]

40. And I'm Hearing That The Priviledge Is With THe Office Not The Person

https://www.democraticunderground.com/?com=post&forum=1014&pid=2810357

[Effete Snob]

15. Do confessions of ex-Catholics remain privileged?

Do your communications with your former lawyer remain privileged?

Part of the analysis is going to be the expectations of the parties at the time.

[Claustrum]

20. I made it very clear that I think Trump doesn't have the right to claim "executive privilege" here.

The problem is that some poster are saying it's because ex-president doesn't have the right to claim "executive privilege" which is incorrect. Ex-president can claim executive privilege if it's applied correctly. It's just that Trump is applying it wrong.

As an poster above cited in a court case, Supreme court ruled that ex-president may claim executive privilege if such privilege is applied correctly.

[Effete Snob]

34. People believe whatever their mood suits them

So long as it translates to “the result I want”.

[EleanorR]

17. From Larry Tribe

Link to tweet

[joetheman]

21. The government should have the right to any and all documents and court appearances that had

anything to do with insurrection, attempting to overturn a legitimate election of the President, and threatening the lives of elected officials.

[brush]

22. Did trump issue an EO to that effect while still in office?

Seems it's too late now.

[Claustrum]

24. The EO issued was from Bush back in 2001 from the article I linked.

Also, from another poster, there is a supreme court case ruled that ex-president can claim executive privilege if the executive privilege is claimed correctly.

Here is the court case that poster mentioned:

From Nixon v. Administrator of General Services, 433 US 425 (1977)

"it is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them."

[JohnSJ]

25. If that is allowed for a president who tried to overthrow our government, then that we are

a democracy is an illusion, and the president is above the law

[Claustrum]

27. Just because an ex-president may claim executive privilege (in a general sense) doesn't make Trump's

use of executive privilege in this specific instance correct. The executive privilege has a specific and narrow scope applied.

The problem is people trying to simplify the issue to "ex-president doesn't have the right to claim executive privilege because he is no longer president" which is clearly wrong. Trump shouldn't and can't claim executive privilege here because of other legitimate rational. We just have to use the right rational when we are talking about such issue and should not continue to use a wrong rational as some posts did earlier today.

[JohnSJ]

30. We will see, because it will be the SC that will determine what is a legitimate use of EP, and what

isn’t

[Ocelot II]

26. I don't think so.

...there’s a Supreme Court case called Nixon v. General Services Administration, the agency that had possession of the records of former President Nixon. Congress had passed a law to allow the GSA to seize and preserve all President Nixon’s presidential records. President Nixon sued, claiming the act was unconstitutional. The Supreme Court upheld the law and basically decided that the current president is the right person to make judgments about the assertion of executive privilege. That’s because under our system, the authority attaches to the office, not the human.

https://today.law.harvard.edu/can-donald-trump-still-assert-executive-privilege/

[Fiendish Thingy]

28. I guess we'll find out next Thursday, when the first batch are scheduled to appear. Nt

[Claustrum]

29. I will post the response from post 13 credited to Onenote which is contrary to what you said

From Nixon v. Administrator of General Services, 433 US 425 (1977)

"it is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them."

Note that the decision says that the former president "also" may assert EP. Ultimately, where the incumbent and the former president disagree, the courts will have to resolve the matter; it is expected that the sitting president's view will be given greater weight, but its not a foregone conclusion. For example, imagine if Trump had decided to release conversations between Obama and his advisers over Obama's objections, for no other reason than to embarrass Obama or those advisors in some way. Should a court allow it? it should take compelling circumstances - such as those that I believe exist in the current situation -- to overcome an assertion of EP by a former president since the goal of EP is to allow Presidents the benefit of unfiltered advice.


It is correct that present president is given higher weight but it's not a foregone conclusion until the court decides.

[PoliticAverse]

35. See...

Executive Privilege and Former Presidents: Constitutional Principles and Current Application
Congressional Research Service
September 20, 2021

(.pdf) https://sgp.fas.org/crs/secrecy/LSB10642.pdf

[Wounded Bear]

36. trump's claim of executive privilege is a lot like the cloud of NDAs he leaves in his wake...

entirely based on nothing but CYA and protecting himself and his image.

[PurgedVoter]

37. What if the Exectutive Order is Outside of the Constitutionally Restricted Powers of the President?

When Bush made the Executive Order that gave himself continued Executive Privileges after he left office, it was just one more brick in the authoritarian wall of nonsense that Cheney and Bush made. Remember that Cheney insisted on rights even larger than presidential rights.

Since as a citizen, you have by constitutional law, rights that are not mentioned in the Constitution, your constitutional right to make citizen orders is much stronger than the rights of a president in areas outside of his constitutionally limited powers.

So for my first citizen order, I am declaring Trump an enemy of the state. There, I did it, now anyone who helps him is a traitor. They were before my citizen order, but now it is official.

I know this is nonsense but so are at least half of the legal shenanigans that Bush-Cheney pulled and pretty much all of the ones that Trump pulled.

[Demsrule86]

38. The current president would need to sign off on that...and Biden won't.

[Me.]

39. Not From What i've Read

THe privilege lies with the office, not the person

https://www.democraticunderground.com/?com=post&forum=1014&pid=2810357

[Claustrum]

41. From my understanding after a long back and forth above with a few posters with way more

knowledge than me.

1) Trump has to right to claim executive privilege even as an ex-president.
2) The court case cited above thread said that the current president's decision is given more weight than the ex-president's in a case where the ex-president and the current president positions differ. So the current president's decision overwrites the ex-president's.
3) Trump can still try to bring this issue to the court (ultimately supreme court) because such a case hasn't been litigated yet. And the unknown is whether the current supreme court will follow precedent/the cited previous court ruling.

[Me.]

43. TFG Can Claim Anything He Wants

Doesn't mean it holds water. As I understand it, the documents are already being handed over.

[FakeNoose]

57. I don't recall Richard Nixon ever claiming EP after he left office

Nor do I recall Dubya doing so, even though they both had a lot to cover up. Why would SCOTUS consider breaking precedent just on the say-so of a failed reality TV actor?

[Me.]

60. EXACTLY

[ecstatic]

44. Fuck that. So any lame duck president can plan a coup and then exert executive privilege if or when

they're investigated? If so, then our system is a complete joke that needs to be reimagined ASAHP.

[kcr]

46. "Not-Tested-in-Court Yet" should be Trump's presidential nickname

[scarytomcat]

52. The system works best when we have Presidents that are honest.

TFG should not gotten in. He is a disgrace.

[kentuck]

53. To paraphrase Abe Lincoln...

One can claim a horse's tail is a leg, but that doesn't make it so.

[UnderThisLaw]

56. A lot of peopje

in this thread terrified at the thought of the committee getting the material it has requested

[Uncle Joe]

58. Certainly not in conduct of a crime against the current chief executive.

No one can serve two masters, thus a nation can't have two Presidents.

Thanks for the thread Claustrum.

[BeckyDem]

59. George Bush was likely legally advised to do it so he could cover his criminal ass.

What worries me is the SCOTUS, too many of the cons are all about executive power as a right. If this were to land in their lap I worry it could benefit Trump and also further corrupt our system of governing.