For several weeks now, a constitutional conflict has been simmering on Capitol Hill. Congress is seeking access to information regarding the Jan. 6 attack on the Capitol and the Trump White House’s efforts to subvert the results of the November 2020 election. Former President Trump has vowed repeatedly to fight those information requests utilizing one of his favorite constitutional weapons while in office, executive privilege. And the Biden administration is in possession of the information. To what extent a former president can rely on executive privilege to prevent Congress from gaining access to information—a question that has rarely arisen and that has never been resolved—is now front and center.
The House select committee investigating the Jan. 6 attack turned up the heat on the controversy on Sept. 23—issuing subpoenas to four close confidants of Trump that demand testimony and personal documents about Trump’s actions leading up to and on Jan. 6. Trump responded with a familiar pledge to “fight the Subpoenas on Executive Privilege and other grounds” not for his own sake but for the “good of our Country.” And soon thereafter, Jen Psaki, the White House press secretary, suggested the Biden administration would comply fully with the information requests from the committee and that President Biden had “already concluded that it would not be appropriate to assert executive privilege.” Her statements led to reports that Biden would waive all available claims of privilege before the committee, but the White House later clarified that she was referring only to past cases and that future cases would be evaluated on a case-by-case basis. The committee indicated on Sept. 27 that a “good number” of additional subpoenas are forthcoming.
The contours of the looming conflict are becoming clear. The committee intends to be aggressive and seek any and all information, notwithstanding any potential privilege issues; the Biden administration will pose few, if any obstacles, to the committee’s information demands; and the Trump team will exhaust every avenue to fight the release of information.
The various issues raised by the commission’s subpoenas and other requests for information are complex, and largely unanswered by the courts. Nor is it clear whether Trump and his team will ultimately follow through on his threats or what choices each individual subject to the committee’s inquiry will make about his conflicting duties to the former president, the current president, and the congressional inquiry. As for the bottom line, it seems quite likely that the committee is correct that, as a legal matter, it is entitled to most of the information and testimony it seeks. But, as a practical matter, the committee may never receive it.
Four distinct groups, each with a unique set of legal obligations and authorities, are now caught up in the question whether the committee will receive the information and testimony it seeks.
First, the committee itself, which is exercising Congress’s constitutional power of inquiry—including the power to subpoena documents and testimony—to conduct its investigation: To date, everyone appears to agree that the committee’s subpoenas are within that investigative authority. Questions remain, however, about whether any subpoena recipient has a valid defense to that authority—such as executive privilege—and, perhaps more importantly, whether the committee has any mechanism for enforcing its authority if faced with recalcitrance.
Second, the Biden administration, including the quasi-independent National Archives and Records Administration and other federal agencies, which together have control of the official government documents and correspondence responsive to the committee’s requests: The Biden White House will determine whether to exercise the executive branch’s constitutional authority to assert executive privilege and withhold information or whether to waive any potential privilege claim. And agency officials, many of whom are Biden appointees, will comb through records and, in coordination with the White House, determine what should be released to the committee.
Third, Trump’s legal team and advisers, who are no longer in control of any records and no longer have the legal authority to direct officials who formerly worked for Trump about the release of information: Trump will fight to assert his view of executive privilege where it contradicts the Biden administration’s view and will likely rely on both the courts and private influence to try and keep information from becoming public. He also may contest the committee’s authority to receive information and testimony.
Fourth, private individuals, including the four who were issued subpoenas on Sept. 23: Some of these individuals were government officials at the time relevant to the committee’s inquiry and some were not. Each of these private citizens will have to determine individually what his legal obligations are and decide which, if any, of the three previous groups has authority to direct or influence his actions.
To date, there appear to be at least three areas in which a conflict related to executive privilege may arise, though the contours of each conflict will vary. There are also looming legal battles over the committee’s access to information that involve issues other than executive privilege—such as the committee’s preservation order for records related to the activities of members of Congress—but those have distinct legal frameworks and must be analyzed separately.
First, and most recently, the committee has subpoenaed testimony from four former Trump confidantes—Mark Meadows, Steve Bannon, Dan Scavino, and Kash Patel. These subpoenas almost ensure some conflict will occur, and Trump quickly released a statement in response saying he would “fight the subpoenas on executive privilege and other grounds.” Meadows and Scavino were White House officials during the relevant period, and Patel was chief of staff to the acting secretary of defense. Bannon, however, was a private citizen during the time period.
The Justice Department and President Biden previously authorized former officials to testify to the House Oversight and Senate Judiciary committees about the Trump administration’s attempts to subvert the election results. The two committees had requested these former Justice Department officials’ testimony as part of investigations into “any efforts by President Trump or any DOJ officials to advance unsubstantiated allegations of voter fraud, challenge the 2020 election results, stop Congress’s count of the Electoral College vote, or overturn President Biden’s certified victory.” The Jan. 6 committee is likely to seek similar testimony and perhaps expand on the previous inquiry. With respect to the earlier witnesses, the Justice Department explained that the extraordinary step of waiving any potential privilege claim was appropriate because the “question whether former President Trump sought to cause the Department to use its law enforcement and litigation authorities to advance his personal political interests with respect to the results of the 2020 presidential election” constituted an “exceptional circumstance” that justified departing from its normal practice of protecting internal deliberations and communications with the president. The letter also made clear that Biden had decided not to assert executive privilege over the material given the “extraordinary events” leading up to Jan. 6, “notwithstanding the view of former President Trump’s counsel that executive privilege should be asserted to prevent testimony regarding these communications.”
Second, the committee sent “sweeping” requests to the National Archives for presidential records of the Trump administration, which are governed by the Presidential Records Act and its implementing regulations. Those regulations delimit the roles of a former president and the current president on questions of executive privilege, but they have never been tested in court. In response to these requests for presidential records, Trump declared that “[e]xecutive privilege will be defended, not just on behalf of my Administration and the Patriots who worked beside me, but on behalf of the Office of the President of the United States and the future of our Nation.”
Third, and relatedly, the committee simultaneously sent similarly broad requests to a number of federal agencies seeking their records related to the inquiry. Those documents are not considered presidential records—and thus are not in possession of the National Archives or governed by the presidential records laws. As described in more detail below, the leadership of each agency, in consultation with the White House and Justice Department, will ultimately decide which of those records to release.
The Legal Framework
The immediate question is seemingly straightforward: Can a former president assert executive privilege? Unfortunately, the answer is neither straightforward nor without controversy. And the appropriate framework shifts depending on the precise parties, records, and constitutional claim at issue.
Undoubtedly, a substantial number of the records and testimony requested and subpoenaed by the Commission potentially implicate executive privilege. As I explained in recent congressional testimony and have written about extensively elsewhere, the executive branch’s current conception of executive privilege as a collection of numerous “components”—including presidential communications, internal deliberations, law enforcement material, national security information, and attorney-client information and work product—is extremely broad and encompasses an enormous swath of information. The first question in an executive privilege inquiry is whether the documents fit within one of these components, that is, whether they are the type of records that fit within the general scope of executive privilege. Quite possibly, a majority of the records requested and subpoenaed by the committee fit within that broad swath. And the records and testimony that do not fit within the scope of the privilege are most likely of little relevance to the committee’s work.
Once it is clear that the documents are potentially covered by executive privilege because their content fits within the scope of one of the privilege’s components, the second question is whether an assertion of executive privilege is appropriate, taking into account the circumstances of the inquiry, particularly Congress’s need for the information. The Supreme Court has held that executive privilege is not an absolute privilege but a qualified one that must yield when there is a compelling need for the information. An attorney general opinion supporting a presidential assertion of executive privilege therefore must first explain why the information fits within the scope of executive privilege and then demonstrate that Congress’s need for the information is not sufficient to overcome the qualified privilege. That second inquiry is the one that will be vital to this dispute: whether executive privilege can and should be asserted given the committee’s stated need for the information and the gravity of the events under investigation. And, as discussed below, there is also the question of who gets to decide whether privilege should be asserted, Trump or Biden.
In its previous letters to former officials, the Justice Department determined that Congress’s need for information related to the Trump administration’s attempts to undermine the Electoral College vote is so compelling that it outweighs the executive branch’s interest in confidentiality and makes executive privilege inapplicable. The letters made clear that the Justice Department was not backing off the executive branch’s broad view of privilege and reasserted that the department would normally not permit officials to freely share this type of information with Congress. Instead, the letters repeatedly emphasize the “extraordinary events” of the postelection period and the “exceptional circumstances” under investigation. The White House reaffirmed on Sept. 24 that Biden views the events of Jan. 6 as a “dark stain” on the country and, as a result, believes the committee should have access to the information necessary to investigate. The executive branch adopted a similar posture in response to the 9/11 Commission—going so far as to share the highly protected presidential daily briefs on a restricted basis with members of the commission.
There are also a number of historical examples that support the position that executive privilege does not apply to evidence of misconduct, including President Reagan’s decision to waive executive privilege during the Iran-contra investigation. The Justice Department Office of Legal Counsel (OLC) has made clear in older opinions that executive privilege “will not be employed to shield documents which contain evidence of criminal or unethical conduct by agency officials.” And the U.S. Court of Appeals for the D.C. Circuit has held that the deliberative process privilege—one of the components of executive privilege—“disappears altogether when there is any reason to believe government misconduct occurred.” The Republican-led House, along with conservative commentators, pressed this argument strenuously as a reason Obama could not assert executive privilege in the Fast and Furious matter.
Notably, the Justice Department did not authorize the former officials to testify on this basis; nor, to my knowledge, has the White House mentioned this rationale as part of the reason Biden will not assert executive privilege. The executive branch has largely muzzled this historical tradition in the past few decades, perhaps because congressional investigations, particularly those by the opposite party, invariably cite “wrongdoing” of some kind. If executive privilege were inapplicable every time there was an allegation of wrongdoing, it would be of little practical utility to the executive branch. The Biden administration—aware that it may face a hostile Republican House or Senate in a few years—thus has an incentive to waive privilege based on the compelling needs of the committee rather than acknowledge that executive privilege is unavailable due to misconduct.
Still, the applicability of executive privilege where concrete evidence of wrongdoing exists is highly questionable. In response to Trump’s statement that he would fight the committee’s subpoenas on executive privilege grounds, former Fourth Circuit judge J. Michael Luttig, who served as the head of OLC during the George H.W. Bush Administration, told the Washington Post that “[w]ith a few notable exceptions, the historical practice has been for Presidents to avoid asserting Executive Privilege to protect from disclosure information that suggests wrongdoing or potential wrongdoing by a President and/or his advisers.” The committee already has documents and information that indicate officials were actively engaged in trying to subvert the election results by pushing a false narrative of voter fraud, which would seem to be sufficient evidence to establish a prima facie case of misconduct. Thus, even if an executive privilege dispute arises—either because Biden decides some material needs to be withheld or, more likely, because Trump attempts to assert privilege or file a lawsuit claiming a breach of privilege or immunity as discussed below—the question may be resolved not by wading through who has authority to assert privilege or whether the committee has a sufficient need for the information. It may be resolved simply by saying that executive privilege is not available because of the substantial evidence of misconduct.
The National Archives and Presidential Records
With that background on executive privilege generally, we can think through the possible permutations and legal challenges that lie ahead. It is helpful to start at the top, with the presidential records currently held by the National Archives. These records are covered by the Presidential Records Act of 1978 (PRA). The impetus for a statute governing presidential records was President Nixon’s claim—supported by historical practice and an attorney general opinion—that all the official documents and recordings from his time in the White House were his personal possessions. Nixon had initially directed the destruction of tape recordings and other documents and established severe restrictions on access to other materials, and Congress enacted laws relating specifically to Nixon’s records to prevent him from doing so. As a result of that controversy, Congress enacted the PRA as a comprehensive statutory scheme to govern the collection of, preservation of, and access to presidential records starting with the Reagan administration. The National Archives administers the PRA in accordance with the statute, as amended, and its implementing regulations.
In response to the committee’s request, the National Archives will search through records from the Trump administration to find any responsive records. After that search is complete and those responsive records have been identified, the question of privilege arises. The regulations implementing the PRA establish a process for determining whether such a need exists in a particular case. And they establish that the incumbent president has the final say over whether privilege is asserted or not.
The current regulations originate in an executive order issued by President Obama and direct the archivist to provide notice to a former president before releasing records from his administration. If the former president asserts that some materials are protected by privilege, the archivist must then consult with the incumbent president. And the archivist will withhold the documents only if the incumbent president supports the claim of privilege, notwithstanding the contrary view of the former president. Interestingly, the previous PRA regulations issued under President George W. Bush gave a former president the ability to assert executive privilege without the consent of the incumbent president. The order explained that “[b]ecause the former President independently retains the right to assert constitutionally based privileges, the Archivist shall not permit access to the records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.” Obama rejected that approach and established the regulations in their current form, which give priority to the incumbent president. Although he could have changed or rewritten them by executive order as well, Trump left the regulations established by Obama’s executive order intact.
Former Presidents and Executive Privilege
That process, governed by statute and regulations, seems straightforward. So why is that not the clear answer, at least as to the presidential records held by the National Archives? The difficulty is that in United States v. Nixon, regarding a grand jury subpoena for the Watergate tapes, the Supreme Court grounded the president’s privilege in the “Constitution’s separation of powers.” And then a few years later, when Nixon, now the former president, challenged the constitutionality of the first presidential records law, the Supreme Court opined in Nixon v. Administrator of General Services that the constitutional privilege recognized in Nixon I “survives the individual President’s tenure” and that “a former president may also be heard to assert” executive privilege claims. The Supreme Court did make clear that 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,” but, in part because of the nature of the case as a facial challenge, the court left unresolved how competing claims of privilege between former and incumbent presidents should be resolved. Nixon II remains the only time the Supreme Court has addressed a former president’s authority to assert executive privilege. And on the very few occasions the situation has arisen in lower courts, they have read Nixon II as granting the former president constitutional authority to assert privilege. The D.C. Circuit, for example, has interpreted Nixon II to mean that a “former President in this context can hardly be viewed as an ordinary private citizen” because he “retains aspects of his former role—most importantly, for current purposes, the authority to assert the executive privilege regarding Presidential communications.”
Because executive privilege is a constitutional doctrine, the PRA and its implementing regulations are not the final word. The Constitution overrides any contrary statute or regulation. And because the Supreme Court has recognized that former presidents have some authority to assert this constitutional privilege, Trump can potentially challenge in court any decisions made by the National Archives and the Biden White House. He could argue that both the procedures established by the PRA, which give the incumbent the final say on claims of privilege, and the Biden administration’s decisions related to privilege pursuant to the regulations violate the Constitution and his ability to assert executive privilege.
Procedurally, Trump would likely sue the archivist, David S. Ferriero, and seek a court order enjoining him from disclosing any records to the committee. Nixon II does appear to recognize a superior right in the incumbent president to assert privilege, but Trump might argue that the current process gives insufficient weight to the views of the former president or that the Biden administration has abdicated altogether its constitutional responsibility to protect privilege. Trump’s arguments would likely not succeed. But such a suit could potentially tie the archivist’s hands and prevent the disclosure of information to the committee for a substantial period of time. The chairman of the committee, Rep. Bennie Thompson, has indicated he would like to wrap up the investigation by spring 2022, and it is extremely unlikely any suit filed by Trump would be resolved by then. Litigation would likely continue up to and beyond the 2022 election. If Republicans won back control of the House, the committee would almost certainly be disbanded. As a result, litigation by Trump could very easily prevent the committee from receiving any presidential records from the National Archives.
In my view, the Supreme Court was imprecise in Nixon II in the manner in which it discussed former President Nixon’s interest in his papers. He almost assuredly had a property interest in those papers given the long history of former presidents’ treating their official papers as personal property. Indeed, a panel of the D.C. Circuit would conclude, almost 10 years later, that—in light of that history—Congress had effectuated a taking of personal property in passing legislation that made Nixon’s papers public property and was required by the Constitution to pay just compensation for that taking. The appeals court included a lengthy appendix setting out how each president had disposed of his papers.
By denominating Nixon’s interest in challenging the presidential records laws as a right to “assert executive privilege” grounded in the Constitution, however, the Supreme Court in Nixon II created a non sequitur. The historical rationale for executive privilege—dating all the way back to George Washington—is a presidential determination that the release of specific information would harm the public interest. By suggesting that a former president might be able to “assert” privilege (even though there was no assertion of privilege at issue in the case), the Nixon II court gave a former president—a private citizen—authority to speak on behalf of the country. In other words, Nixon II, at least as most people now read it, recognized the constitutional right of a former president to dictate what is in the nation’s interest, albeit with some oversight by the current president.
Although former presidents certainly have a unique position in the country and may be asked to perform tasks on behalf of the country once their term ends, they are no longer empowered by the people to speak on behalf of the country. Any authorization would need to come from the president or other officials who have been elected or appointed to lead the country at that time. But Nixon II rejected that argument. Thus, Trump has a reasonable argument that his views about what information the public interest requires releasing or withholding will be given weight by a court should Trump decide to pursue that route.
Subpoenas to Private Citizens
The subpoenas to Meadows, Scavino, Patel, and Bannon implicate the same privilege issues as the document requests, in that some portion of the testimony and documents sought likely fits within the scope of executive privilege. That determination may vary among the four recipients, particularly as to Bannon, who was not a government official at the time of the events in question. But—as far as executive privilege goes—the same potential three-way conflict may arise, this time among the Trump team, the Biden administration, and each individual subpoena recipient.
But there is one enormous difference. The National Archives is not in possession of the sought-after information; private citizens are. The archivist and his staff are governed by the PRA and its implementing regulations, and those regulations are clear that the current president has the ultimate say over whether information is disclosed or not. Presumably, the archivist will abide by those clear legal obligations.
By contrast, there are no clear statutes or regulations governing the obligations of the private individuals who received subpoenas from the committee. Instead, each of the four subpoena recipients will, in all likelihood, be confronted with at least two and possibly three conflicting commands from the committee, Trump, and, potentially, the Biden administration. Each of them will have to consult with his own legal counsel to determine for himself what his legal obligations are and what actions are permissible.
Moreover, the subpoenas for testimony from Meadows and Scavino may raise additional issues beyond executive privilege. Anyone who followed the oversight disputes during the Trump administration likely remembers hearing about the controversial doctrine of absolute testimonial immunity. In short, the executive branch claims—and has done so under presidents of both parties—that the close advisers to the president are immune from and thus not required to comply with congressional subpoenas seeking their testimony.
Trump is no longer in office, of course, and thus Meadows and Scavino are now former advisers to a former president. One might think that whatever the validity of the testimonial immunity doctrine more generally, it has no applicability to such individuals. But the issue is not quite so clear-cut. Both the Obama and Biden administrations continued to defend immunity claims protecting former close advisers after the terms of Presidents Bush and Trump had expired. (Of course, in contrast to the committee’s subpoenas, the original congressional subpoenas in those cases had been issued while Bush and Trump were still in office.) And part of the rationale for testimonial immunity is grounded in the idea that close advisers’ conversations with the president are protected by executive privilege. Thus, OLC has previously opined, and Trump will undoubtedly argue, that Nixon II’s recognition that former presidents retain some ability to assert executive privilege necessarily means former advisers retain at least some type of immunity.
Trump would also point to one of the earliest historical precedents supporting the doctrine of testimonial immunity: former President Truman’s refusal to appear before the House Un-American Activities Committee. At that time, Truman asserted that it is “just as important to the independence of the Executive that the actions of the President should not be subjected to questioning by the Congress after he has completed his term of office as that his actions should not be questioned while he is serving as President.” Because the executive branch regards close advisers’ testimonial immunity as derived from and coextensive with the immunity of the president, it asserts that the same principle Truman espoused applies to close presidential advisers as well, even former advisers. Trump can thus use the Justice Department’s own writings and precedents to support his argument, even if the current Justice Department takes a different view.
But again, it does not matter whether Trump’s arguments are correct or whether they would ultimately be accepted by a court. In all likelihood, even the most conversative courts, including the Supreme Court, would reject any attempt to claim testimonial immunity. Testimonial immunity has been roundly rejected by every court that has considered its merits, even when a current president is claiming it for an adviser. Trump’s arguments would be directed at Meadows and Scavino. And his only real purpose would be to give them a legal basis to refuse to comply with the committee’s subpoenas.
The subpoena recipients will ultimately have to make their own choices about what to do. Regardless of what any politician, legal expert, or commentator says, the choice at this stage lies wholly with those four individuals. Assuming that (a) Trump urges them publicly and privately either to stonewall the committee entirely or to provide only limited testimony and documents, (b) the committee demands their testimony and threatens them with contempt of Congress for noncompliance, and (c) the Biden administration authorizes them to speak freely and waives privilege, those four individuals will be the ones to make the choice about which direction they are obliged to follow.
Their situation is somewhat similar to that of witnesses who were subpoenaed to testify as part of the first impeachment inquiry but were directed not to do so by Trump or his loyal appointees. Some, such as National Security Council staffers Alexander Vindman and Fiona Hill, chose to testify despite orders to the contrary. Some, such as acting White House Chief of Staff Mick Mulvaney and National Security Council lawyer John Eisenberg, chose to follow Trump’s direction and not show up. A third group, led initially by former deputy and acting national security adviser Charles Kupperman, filed a declaratory action in court asking the judiciary to decide the dispute for them (and thereby, in effect, refusing to comply with the subpoena unless ordered by the court to do so). As Kupperman put it in his complaint, he could not “satisfy the competing demands of both the Legislative and Executive Branches” and was “aware of no controlling judicial authority definitively establishing which Branch’s command should prevail.” As a result, “[a]bsent a definitive judgment by the Judicial Branch,” Kupperman would “effectively be forced to adjudicate the constitutional dispute himself.”
Of course, when Kupperman sought judicial resolution of the conflicting commands of the two branches, Trump was the president. But the same principle holds for the current subpoena recipients with respect to both executive privilege and any potential claim of immunity. If Trump purports to “direct” them not to comply with the commission’s demands for testimony and documents, either in whole or in part, they too must “adjudicate the constitutional dispute” and decide whether the former president’s directive has legal force. They have the additional wrinkle of an incumbent president and his agencies likely authorizing their testimony and waiving privilege, but those individuals will be the ones to decide—at least initially—how much weight to give the Biden administration’s views.
Several former Justice Department officials have already made that choice. Former Acting Attorney General Jeffrey Rosen and others have testified to the Senate Judiciary Committee after receiving authorization to do so from the Justice Department. It is not clear how much Trump’s team attempted to prevent them from doing so, however; Trump did not file suit or even attempt to claim privilege before the committee. Thus, the Jan. 6 committee seems likely to get testimony from Rosen and others who have already testified to Congress pursuant to the Justice Department authorization. Whether the committee gets additional testimony from those closer to Trump’s inner circle will likely depend on what choices those individuals make.
Contempt of Congress
There is also one potentially significant difference between officials who defied subpoenas while Trump was in office and individuals who defy the committee’s subpoenas about Jan. 6. The current subpoena recipients face the possibility of prosecution for criminal contempt of Congress. The Justice Department, relying on a 1984 OLC opinion, has long refused to bring contempt of Congress charges against executive branch officials who defy congressional subpoenas at the direction of the president pursuant to a claim of executive privilege or testimonial immunity. Following that practice, the Justice Department under Trump refused to prosecute any of the officials who defied congressional subpoenas. But Trump appointees are no longer in charge at the Justice Department.
If Attorney General Merrick Garland and department leadership determine that the witnesses must follow Biden’s decision on privilege and that Trump’s claims have no weight, then the Justice Department may very well authorize prosecution. There is very little public information about the Justice Department’s views on the authority of former presidents. Only a 2001 OLC opinion explaining that although “[executive] privilege belongs to the Presidency as an institution and not to any individual President, the person who served as President at the time the documents in question were created is often particularly well situated to determine whether the documents are subject to a claim of executive privilege and, if so, to recommend that the privilege be asserted and the documents withheld from disclosure.” The opinion largely supports the primacy of the incumbent in matters of privilege but does recognize some interest in the former president.
Rep. Adam Schiff, who sits on the Jan. 6 committee, recently commented that he expects the committee to refer recalcitrant witnesses to the Justice Department for prosecution for criminal contempt. Those individuals could raise executive privilege and/or immunity in defense in any such prosecution. But facing criminal prosecution for noncompliance would likely raise the stakes for those individuals and may push them toward testifying. The crime is not a particularly serious one—a misdemeanor carrying a maximum fine of $1,000 and a maximum sentence of one year. Any prosecution would also take a substantial period of time as well, making it unlikely that an individual could be charged and prosecuted before the committee finished its work. Still, given the weight of authority privileging the view of the current president—including the PRA regulations and the recognition in Nixon II—witnesses faced with the threat of criminal charges and prosecution may very well decide to break from Trump. Or, more likely, they may try to work out a compromise with the committee that allows them to claim partial victory—and continuing allegiance to Trump—while also satisfying some of the committee’s information demands and avoiding referral for criminal prosecution. That path may be a narrow one to navigate, however, and I am skeptical the committee will allow these witnesses to skirt any negative consequences without providing at least some of the most sensitive details the committee is seeking about the Jan. 6 attack and Trump’s role in it.
Requests for Agency Documents
Finally, the committee has also requested a broad set of documents from various federal agencies. These records are not covered by the PRA, and there are no specific laws or regulations governing what role a former president should have in deciding whether any records will be withheld on the basis of executive privilege. General federal records that are not presidential records within the meaning of the PRA are governed by a separate federal records law, first enacted in the 1950s. Unlike presidential records, these federal records generally remain in the custody of the agency for some time before being turned over to the National Archives. Each agency must have a system to ensure its records are preserved and catalogued, and the unauthorized destruction or removal of these records is prohibited.
The committee’s requests for agency records will, in theory, be handled by each agency. In reality, however, the agency leadership—appointed by Biden—will work closely with the Biden White House as well as the Justice Department and OLC to determine whether there are any records they should consider withholding. Recent reporting suggests the Biden administration plans to be very accommodating to the committee. Unlike its obligations with respect to presidential records, the Biden administration has no legal duty to consult with Trump about the agency records, though it likely will do so out of courtesy, at least initially. Still, aside from cooperating witnesses, the agency records are potentially the most straightforward route for the committee to gain immediate access to relevant information.
Unlike the archivist, who has some measure of independence from the administration (and was appointed by Obama), the agencies are run by Biden appointees who are both subject to presidential control and sympathetic to the committee’s purpose. Trump may attempt to stop the agencies from turning over documents, perhaps by seeking an injunction against the agency head rather than the archivist. But, if he threatens or actually takes that route, the Biden administration could also thwart his ability to file such a suit by turning over documents without notifying him. While the PRA regulations require the archivist to notify Trump about the records it plans to turn over and require the Biden administration to consult with Trump, no such regulations exist regarding ordinary federal records. In other words, the independence of the archivist, who is in possession of the presidential records, and the formal process of the PRA ensure that Trump will have much more direct knowledge about what is happening with presidential records. He can act on that knowledge and use the courts to attempt to thwart, or at least delay, the process. But he may not have that same luxury with respect to federal agency records.
We should not assume, however, that the committee will get all the records it has requested from the agencies. The White House very quickly walked back its initial broad statement that executive privilege would not be asserted. Very likely, there will be some documents or emails responsive to the committee’s request that the Biden administration feels should not be turned over, either because of the information they contain or because of the precedent it might establish for the future. One potential area of concern could be any ongoing criminal investigations into the events of Jan. 6. The Justice Department has long had a strict policy of not sharing information from open law enforcement investigations. Biden almost certainly will not formally assert executive privilege over any of these documents given the White House’s accommodating approach to date. And the optics of Biden asserting executive privilege to protect the Trump administration in connection with the Jan. 6 attack on the Capitol would seem to ensure no formal privilege claim will be made. The White House and relevant agencies may, however, work behind the scenes to negotiate with the committee on particular requests in order to shield sensitive information and avoid setting a broad precedent for future oversight from a Republican-controlled House or Senate.
There is a reason almost every significant oversight dispute in recent history has arisen when opposite parties control one house of Congress and the White House. When White House officials and congressional staffers representing the same political party negotiate over information, they operate from a foundation of trust and shared purpose and almost always find a compromise solution to the impasse. The same will be true with the committee and the Biden administration, including current agency heads.
Federal agency records thus may be the records most quickly accessible to the committee and the ones Trump has the least ability to tie up in a lawsuit. These records, in combination with testimony and documents from cooperating witnesses—including the Justice Department officials who have been authorized to testify already—may permit the committee to gather enough information to complete its task and gain a relatively full understanding of the events leading up to and on Jan. 6. But, in all likelihood, the full narrative will not be evident without presidential records from the National Archives and/or testimony from Trump’s closest confidantes. If the committee presses for all of that information as well, the end result may be more bluster and lawsuits without any real resolution.