In an eight-to-one decision, the Supreme Court agree with the House Select Committee that President Trump did not have the power of Executive Privilege to block the release of approximately 700 documents.
There was a legitimate argument to be made that if a former President cannot exert Executive Privilege over papers from his or her administration, there essentially is no such thing as Executive Privilege.
The idea of Executive Privilege is to protect confidential information, national secrets and notably conversations with foreign heads-of-state. If there is a chance that any old committee of Congress or any court can order the release of ALL documents after a President leaves office, the entire purpose of Executive privilege would be nullified.
The lack of Privilege for past Presidents could – and would – be weaponized by a successor with different political interests. To some measure, that is happening today. The Kangaroo Select Committee is on a political fishing expedition as much as a serious investigation. The Justice Department is already investigating the Capitol Hill riot. It is the only agency that can bring charges – and already has indicted more than 700 people. The Select Committee is playing politics.
If foreign heads-of-state believe that their confidential conversations with a U.S. President are only private while in office, it will seriously discourage any form of face-to-face communication. Candor will be lost.
For weeks, arm-chair lawyers – and even real lawyers, who know better – have been stating that a past President does not have ANY power of Executive Privilege. Only the incumbent President can exert it. If that were true, a President’s ability to negotiate would be at risk.
In previous commentaries, I expressed my belief that even ex-Presidents should have – and must have – the power of Executive Privilege over documents, records and material produced during their term of office – with some exceptions involving potential matters of criminality. That is “criminality” – not over differences in policy or politics.
While the media pays a lot of attention to the release of the Trump documents, little attention has been paid to what the Supreme Court did not do. It did not say that past Presidents have no power of Executive Privilege. It was Justice Brett Kavanaugh who noted that the decision of the Court was very specific to these papers at this time.
By limiting the decision, the high Court left open the possibility that ex-Presidents do have significant control over the release of their papers. By specifically stating that this decision does not mean that ex-presidents have no Executive Privilege, they strongly implied that they do.
Even though it was a good decision, weaponizing presidential Executive Privilege – as has been done by President Biden and the Select Committee – the issue may have been put upon that proverbial slippery slope. Next time it may be Republicans digging through the files of a former Democrat President. In these matters, what goes around tends to come around. Democrats may not be the ones celebrating in the future.
So, there ‘tis.