Supreme Court’s Watergate-era rulings against Nixon may end Trump’s executive privilege claims

By CNN

Published November 10, 2021 8:09 PM

CNN

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Former President Donald Trump‘s attempt to withhold records from the House of Representatives related to the January 6 US Capitol attack based on executive privilege — a claim rejected by President Joe Biden — would present the US Supreme Court with a novel legal dilemma.

But past decisions involving assertions of executive privilege to keep documents confidential suggest Trump has a weak case, even if heard by this increasingly conservative high court, with three Trump appointees on the nine-member bench.

“The privilege is not for the benefit of the President as an individual, but for the benefit of the Republic,” the Supreme Court declared in a 1977 touchstone decision involving former President Richard Nixon.

More recently, the justices last year expressed concerns that congressional demands for presidential documents could arise from “impermissible purposes,” such as to harass a president, and interfere with his official duties. In this new case, however, any possible distraction from duties dissolves because Trump no longer holds office.

In a decision late Tuesday, US District Judge Tanya Chutkan cited Supreme Court precedent as she ruled against Trump’s effort to obtain an injunction to stop the National Archives from releasing records sought by a US House of Representatives select committee investigating January 6. She noted the unprecedented legal situation: “a former President asserts executive privilege over records for which the sitting President has refused to assert executive privilege.”

“At bottom, this is a dispute between a former and incumbent President,” she wrote in her 39-page opinion. “And the Supreme Court has already made clear that in such circumstances, the incumbent’s view is accorded greater weight.”

Chutkan brushed away Trump’s argument that he retains control of the privilege, declaring, “Presidents are not kings, and the Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President is not constitutionally obliged to honor that assertion.”

The judge rejected Trump again Wednesday night, as the former President continues legal maneuvers to delay the document handover while appeals play out.

The National Archives is scheduled to turn over more than 40 pages of documents related to January 6 on Friday, including White House visitor and call logs and three handwritten memos from the files of ex-White House chief of staff Mark Meadows.

The House committee contends it urgently needs the records. “The potential harm to the public is immense,” the House committee wrote in a court filing Wednesday. “Our democratic institutions and a core feature of our democracy — the peaceful transfer of power — are at stake.”

Trump’s next appeal on the merits of his case would be directed to the US Court of Appeals for the District of Columbia Circuit, before he would proceed to the high court.

Nixon’s attempt to destroy Watergate tapes

The Supreme Court scaffolding for the current dispute dates to 1977, when Nixon, three years removed from office, challenged the Presidential Recordings and Materials Preservation Act in his effort to shield Watergate tape recordings and documents.

Chutkan noted in her opinion that Nixon had said he planned to destroy the tapes and that, since the entire Nixon ordeal, Congress had adopted the Presidential Records Act, which changed ownership of a president’s official files from private to public; the House committee is seeking the archived Trump files under the act’s terms.

Nixon lost in 1977 by a 7-2 vote. A threshold question for the justices in that case of Nixon v. Administrator of General Services was whether Nixon, as a former president, could assert executive privilege — a right intended to ensure a president confidentiality in his dealings with advisers and usually given significant protection. In an earlier case, the 1974 United States v. Nixon, the court had said the privilege is not absolute, as it required Nixon to turn over Watergate tapes for a criminal investigation. (Nixon resigned soon after that decision.)

In the 1977 Nixon dispute, the justices said a former president can, even after leaving office, assert executive privilege. “The privilege survives the individual President’s tenure,” Justice William Brennan wrote for the majority.

Yet the court emphasized a significant condition relevant to the Trump case: “At the same time, however, the fact that neither President (Gerald) Ford nor President (Jimmy) Carter supports appellant’s claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch,” Brennan wrote. “This necessarily follows, for it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.”

Chutkan relied heavily on that seminal opinion Tuesday as she observed that presidential conversations would normally fall under the protections of executive privilege but that the privilege is not absolute.

Just as the Supreme Court in 1977 found that Nixon’s desire to keep and destroy the tapes was surpassed by broader governmental interests, Chutkan stressed that presumption of a privilege can be overcome by legislative or judicial needs. Biden, she wrote, had declined to assert executive privilege because of Congress’ compelling need to investigate the January 6 assault on the Capitol.

Among the materials sought are written communications, calendar entries, videos related to the January 6 rally and the White House response to the violence at the Capitol.

Rioters broke through barricades at the building as Congress was preparing to count the electoral votes from the 2020 presidential election, which Trump lost to Biden. Trump had spoken at the rally earlier that day, repeating his claims, with no factual basis, that the election had been “stolen” from him and his followers should “fight like hell.”

Trump’s financial documents

Biden’s endorsement of the US House committee’s request for materials from January 6 eases the separation-of-powers concerns that traditionally loom when Congress seeks presidential materials.

In that regard, Chutkan’s opinion drew on the 2020 Trump v. Mazars case, in which the then-President had tried to prevent House Democrats from obtaining certain tax and other financial documents. Trump argued at the time that his role as president should shield him from investigation.

The Supreme Court rejected Trump’s broad claim that the House lacked power to subpoena the documents but returned the dispute to lower courts to weigh “special concerns” regarding the balance of powers among the branches and the House’s claim that its request flowed from a valid legislative purpose.

Chutkan said much of the Supreme Court apprehension in the 2020 document dispute would not apply to the current controversy because of Biden’s position. (Trump also lacks the personal-privacy grounds he raised in the Mazars financial-documents case.)

Trump has argued that current House document requests are too broad and would be a burden to fulfill.

“But upon whom is the burden imposed?” Chutkan wrote. “President Biden has determined that the requests are not so intrusive or burdensome on the Office of the President as to outweigh Congress’ ‘compelling need in service of its legislative functions.’ Unlike the circumstances presented in Mazars, here, the legislative and executive branches are in harmony and agree that the requests are not unduly intrusive, thus extinguishing any lingering concerns about the breadth of the requests.”

Irrespective of past Supreme Court action on presidential powers, Chutkan, as she chronicled Trump’s false election claims, recalled the strained relations between the former President and the court. She observed that the justices had spurned Trump’s voter fraud arguments in 2020.

Wrote Chutkan: “The United States Supreme Court also denied numerous emergency applications aimed at overturning the results. In response, Plaintiff tweeted that the Court was ‘totally incompetent and weak on the massive Election Fraud that took place in the 2020 Presidential Election.’ “

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