From a legal standpoint, there isn’t much to debate about Trump’s constitutional claim on his papers. His argument is, in fact, quite weak.
In 1977, the Supreme Court recognized the limited scope of the constitutional interest of former presidents in their confidential documents. Explaining why Richard Nixon, who brought the case, lost, the court explained that “the incumbent president” was “best placed to assess the present and future needs of the executive”, and therefore “to support the invocation of privilege. “That is, even if a former president has an interest in the confidentiality of his official documents, it is up to the sitting president to decide how and when that interest is honored.
It remains the law. Indeed, a 2009 executive order, which Trump never changed, clearly puts the Oval Office holder responsible for disclosure decisions (and denies the former president any right to prosecute). Even if Trump is correct that certain documents are privileged, it is simply not for him to know if and how this interest of confidentiality is overridden. And Joe Biden’s administration has already refused to accept Trump’s invocation on a first set of documents.
Presidents-in-office rightly exercise this power because they work under oath on the Constitution; former presidents are no longer covered by the same oath. Incumbents are also privy to information about the downstream effects of disclosures that past presidents do not have. As a result, the Supreme Court explained in 1988, incumbents have broad power to “classify and control access to information relating to national security” given “the constitutional investment of power in the president”. As Chief Justice John Roberts explained in upholding Trump’s travel restrictions on Muslim-majority countries despite the former president’s stated anti-Muslim reasoning, there is a constitutional gulf between “a particular president” and “l ‘authority of the presidency itself’.
Given that Trump’s constitutional claim to control disclosure is so weak, why should anyone be concerned about the trajectory of the House committee? The problem is that the litigation between Congress and the executive over disclosure has grown so long that it can be used to exhaust the time spent on a legislative investigation, even in the absence of a substantiated complaint.
For example, three House committees first requested financial records from Trump and members of his family in April 2019. The Supreme Court heard the ensuing legal challenge in May 2020 and ruled against the president in June 2020 (more than 450 days after the first subpoena). Published). A district court ordered some disclosures in August (another year later), and yet it is still not clear if anything has been revealed.
Same Nixon’s notorious White House tapes, which were the subject of litigation in 1974, weren’t fully disclosed until… 2013. The original lawsuit did not lead to a quick exposure of everything.
The idea that justice delayed can be justice denied, of course, is nothing new – Charles Dickens wrote an entire novel about it in 1852. But in this case, the White House has two tools to alleviate the problem. without disrespecting federal courts or the rule of law.
First, the legal process does not have to slow down. Churches seeking an injunction against the Covid restrictions quickly obtained an injunction from the Supreme Court. Within weeks, homeowners challenging the recent nationwide moratorium on evictions issued by the Centers for Disease Control were able to have the measure overturned.
The Department of Justice can seek an expedited resolution of the constitutional issue by seeking a declaratory judgment against the former chairman of the DC District Court, and then request a “pre-judgment certificate” to quickly obtain a high court review in those cases. limits of the authority of Article II.
The Supreme Court’s so-called phantom expedited litigation case has been the subject of much criticism, but in this case, a swift legal process – especially where the delay itself threatens the rule of law – is clearly justified. . The shadow case has not always been controversial. No one, for example, complained when Chrysler’s bankruptcy litigation in 2009 was rushed through the High Court. So also here.
Of course, the Roberts Court might not be playing ball: Undoubtedly, a smart lawyer can conjure up a reason why realtors, but not the President, deserve swift justice.
A second option for Biden would be to take advantage of the president’s broad authority under Article II of the Constitution to decide whether and how to release classified documents – that is, not just whether to hand over a file, but if and how to keep specific facts confidential. . As one Republican senator noted, an incumbent president has the power to “declassify anything at any time.” Here, moreover, the authority of Article II is at its zenith because the disclosure also serves the interests of Article I of Congress for effective oversight.
Using his constitutional power to declassify at will, Biden could order his aides to go one of two ways. First, they could review the disputed documents and then disclose parts relevant to the committee’s investigation with its staff. Disclosure may be limited by certain rules, such as allowing committee members to review documents only on-site at the White House. Alternatively, an even more conservative approach would be for presidential assistants to review documents at the request of select committee staff members, and then share the responses with those staff members without showing them the underlying documents. The practicality of the latter approach would depend on the exact question asked.
A precedent for such a broad use of the president’s declassifying power comes from the Trump years. Famously, as President, Trump used this power cavalierly to leak classified information to the Russian Foreign Minister and the Russian Ambassador. Trump has also pushed law enforcement and intelligence agencies to declassify details of the Russia investigation. Having used this power so recklessly, he is hardly able to complain about it now.
Both of these approaches address the deep problem facing the select committee – not Trump’s constitutional claim to executive privilege, but the strategic use of litigation to deflate the rule of law. And both have the merit of fitting comfortably into our constitutional traditions in the process.