Published by The Lawfare Institute
in Cooperation With
The central question of former President Trump’s second impeachment trial may be very similar to the central question of the first trial. Putting aside the larger discussion about whether a president who is impeached but then leaves office may still be tried in the Senate (questions addressed comprehensively by scholar Keith Wittington here), this trial will depend primarily on examining Trump’s intent. And another question may be familiar as well: If the Senate needs evidence of Trump’s intent, to what extent, if at all, can Trump suppress that evidence by invoking executive privilege?
In early 2020, the Senate was asked to decide whether Trump intended to blackmail Ukraine into harming his political rival for his personal gain or whether his request for a “favor” from the Ukrainian president was benign or, at least, not sufficiently culpable to warrant impeachment. Now, the Senate is asked to decide what Trump intended when he told his followers on Jan. 6 to march to the U.S. Capitol and “fight like hell” to prevent the election from being “stolen” and what he intended in the days leading up to Jan. 6 as he repeatedly endorsed conspiracy theories suggesting his loss to Biden was fraudulent. For both impeachment inquiries, the principal evidence has been public: the transcript of the Ukraine call and the Jan. 6 speech, respectively.
But Trump’s intent is a critical issue, perhaps the critical issue for culpability. Indeed, some scholars have gone so far as to argue that Trump cannot be impeached and convicted if his speech is protected by the First Amendment. And even though numerous other scholars, both conservative and liberal, disagree with that analysis, Republican senators have picked up that argument as well. But the First Amendment argument, too, turns on intent. The First Amendment does not protect speech inciting violence. But speech can be considered incitement only if the speaker intended to incite imminent violence and such violence was likely to occur.
Proving intent requires evidence. Often, this evidence is circumstantial and in the form of witnesses testifying to what a person told them about her purpose or how the person acted during a crucial time period. In a sense, as some senators have remarked, “We are eyewitnesses.” Trump, before his deplatforming, left no shortage of public statements fomenting his supporters to action over what he called the “stolen” election, and his Jan. 6 speech is there for all to read. But the American public does not know exactly what Trump did as his supporters ransacked the Capitol and pursued violence against the country’s elected leaders. Nor does the public have firsthand accounts of what Trump told his aides and allies in the days leading up to the insurrection. The best evidence of his culpable intent would be the same type of evidence that the House impeachment managers tried—and failed—to introduce in the first impeachment trial, personal testimony from those who interacted with Trump or observed him during these periods. Such testimony could remove any doubt that Trump willfully and mendaciously urged his supporters to refuse to accept the results of the election at all costs, knowing full well that violence was a likely result. Firsthand accounts could also demonstrate Trump’s complicity in the Capitol insurrection by establishing a purposeful failure to act. House impeachment managers appear to understand this and are deliberating whether to call witnesses who interacted with Trump during the occupation of the Capitol and in the days leading up to it.
In the first Trump impeachment trial, the arguments against hearing witnesses—which some called “incomprehensibly weak”—rested primarily on the claim that they were not necessary or appropriate. Some senators, such as Lamar Alexander and Lindsey Graham, claimed it did not matter if Trump had withheld congressionally appropriated foreign aid to pressure Ukraine into announcing an investigation into his political rival purely for personal gain. Others, such as Marco Rubio, perhaps uncomfortable with blessing such conduct, suggested that Trump’s conduct constituted grounds for removal but did not actually warrant removal. Still others relied on procedural arguments, claiming that the House had the responsibility to gather all relevant evidence, including trying to compel recalcitrant witnesses to testify by filing enforcement actions in court. (Never mind, of course, that such judicial actions take months or even years or that Trump’s Department of Justice had argued that the courts lack authority to hear such actions.)
Undergirding many of the senators’ arguments, however, was the contention that the witnesses’ testimony implicated executive privilege. Ron Johnson, for example, said that he wanted to protect against the “weakening of executive privilege,” and Graham characterized the House as “blow[ing] through these privileges” and insisted he would not “destroy the privilege” by seeking testimony. Former National Security Adviser John Bolton, the central figure in the dispute over witnesses, had indicated he was willing to testify if called (having had a change of heart after initially refusing to comply with a subpoena from the House). But Trump had, in a now-deleted retweet, adopted the view that even if Bolton agreed to testify, the “White House c[ould] assert executive privilege. It’s not Bolton’s privilege; it’s the president’s. If executive privilege covers anything, it is a talk between president and top advisor on matters of foreign policy.”
As Trump faces his second impeachment trial, this time as a private citizen, the question of witnesses is again percolating—and the question of executive privilege potentially looming. Minority Leader Mitch McConnell, apparently without irony, has called it “imperative” that the Senate not follow a “half-baked process” in this impeachment trial, suggesting he might favor a more traditional trial than last time, that is, one that includes witness testimony and evidence. Some Democrats, such as Tim Kaine, have come out in favor of witnesses for the sake of ensuring the solemnity and thoroughness of the trial, if they are called by the impeachment managers or defense. But others have suggested no witnesses are necessary given that the events that form the core of the charges—the encouragement of the Jan. 6 attack on and occupation of the Capitol—took place in public view.
Complicating the question of witnesses are the recent revelations that Trump worked with Jeffrey Clark, a previously little-known Justice Department official, on a plan to oust Acting Attorney General Jeffrey Rosen. Trump reportedly spoke directly to Clark about weaponizing the Justice Department to attempt to overturn the election results once the president removed Rosen. Those reports mention a draft brief prepared by Trump’s personal lawyers that Trump asked the U.S. solicitor general to file in the Supreme Court as well as a brief memo with talking points prepared by the solicitor general’s office for Rosen to use in attempting to dissuade Trump from proceeding with the scheme. Moreover, although the recording of Trump’s infamous call trying to convince Georgia Secretary of State Brad Raffensberger to “find” more votes is public, there is undoubtedly a substantial amount of evidence about that conversation and others that would be relevant to a trial focused on those actions.
The potential witnesses—Clark, Rosen, Raffensberger, former White House Counsel Pat Cippolone, his deputy, Patrick Philbin—would be testifying about their conversations and meetings with the president, conversations often considered to be at the core of executive privilege. Presidential communications enjoy a presumptive privilege because, in the Supreme Court’s words, the “President and those who assist him must be free to explore alternatives” without the fear that their deliberations will be made public. But, as Trump retweeted during the last impeachment in response to Bolton’s willingness to testify, executive privilege belongs to the president. And Trump is no longer the president.
Could Trump, as a former president, block the testimony of these witnesses or prevent the release of documents such as the draft brief or Rosen memorandum, by asserting executive privilege? There is, of course, the preliminary question of whether executive privilege applies to an impeachment hearing. I have explained at length why I think the best answer to that question, as a matter of history and theory, is that it does not. But assuming Trump attempts to block some of the testimony or witnesses refuse to answer out of deference to the president’s authority to potentially assert executive privilege, what should happen? Clark, for example, has already stated that “[o]bserving legal privileges, which I will adhere to even if others will not, prevents me from divulging specifics regarding the conversation” about the alleged strategy to remove Rosen and try to overturn the election.
There are no clear answers on the ability of a former president to assert privilege, but there are some principles and precedents to guide the inquiry. The most famous case on executive privilege is United States v. Nixon, in which the Supreme Court ordered President Nixon to disclose the White House tape recordings about Watergate. But, in an often-overshadowed second privilege case involving Nixon, Nixon v. Administrator of General Services, the court held that Nixon, as a former president, had standing to assert executive privilege. The case arose out of a fight for access to the documents and tape recordings of Nixon’s tenure in the White House. Upon his resignation, Nixon had instructed government archivists to pack up all of his White House materials and recordings and ship them to California. But the Watergate special prosecutor still needed access to the materials for his investigation, and there were outstanding subpoenas for some of the material. President Ford asked Attorney General William Saxbe whether the papers belonged to Nixon or whether they belonged to the government. Saxbe, recounting a long history of treating presidential papers as the former president’s property, concluded that the materials belonged to Nixon. Nixon then entered into an agreement with the administrator of the General Services Administration (GSA) that would have severely restricted access to some of the materials and, among other things, would have provided for the destruction of the infamous tape recordings.
Congress was, unsurprisingly, upset at this sequence of events and, in response, passed the Presidential Recordings and Materials Preservation Act, which applied solely to the Nixon materials. The law was specifically designed to abrogate the agreement governing Nixon’s records and eliminate Nixon’s control of and ownership over the materials. President Ford signed it into law on Dec. 19, 1974, without objection. The Supreme Court allowed Nixon, even as a former president, to challenge the law as an unconstitutional infringement of executive privilege. But the core of the court’s reasoning explains only why executive privilege should apply to former presidents’ documents. After recognizing the counterargument that a former president no longer had any role under the Constitution, the court adopted the “sounder” view put forward by the solicitor general that the “privilege survives the individual President’s tenure.” Otherwise, the court reasoned, advisers would not have a sufficient guarantee that their conversations with the president would be kept confidential.
The fact that the privilege itself survives the tenure of a president does not, however, answer the more difficult question of who may assert that privilege. The two inquiries are often conflated, but distinct. 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. As the GSA court noted, quoting the solicitor general, “the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic.” The incumbent president is the one who has been elected to represent the interests of the country and is, arguably, the only one with the constitutional authority to determine when disclosure would be in the country’s interests. The GSA decision largely elides this issue because the court had no opportunity to address the extent of a former president’s authority to assert executive privilege or how the views of the incumbent would factor into such an assertion. The suit did not involve an assertion of privilege over particular information; it was a facial challenge to the act itself. The court simply adopted the view that the privilege “survives” the presidency, accepted that Nixon had some continuing interest sufficient to bring the suit, and noted that “the fact that neither President Ford nor President 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.”
The Department of Justice and the U.S. Court of Appeals for the D.C. Circuit have interpreted GSA to provide a former president some authority to assert executive privilege and attempted to expound on a rationale to justify such a system. The Office of Legal Counsel (OLC) reasoned in a 2001 opinion that:
although the 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.
OLC relied principally on a decision by the D.C. Circuit concluding that consultations between a former president and the archivist of the United States were exempt from disclosure under the Freedom of Information Act. In that opinion, citing GSA, a conservative panel of the court held 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.” Both the OLC opinion and the D.C. Circuit’s decision ultimately concluded that—in the respective statutory contexts at issue—a former president is not akin to a private party. But, like the Supreme Court’s opinion in GSA, neither of these opinions addresses a former president’s assertion of privilege over specific information or testimony that is not supported by the incumbent.
The historical test governing when executive privilege is appropriate requires the president to determine whether the release of specified information would be in the public interest. Even if it is true that a former president may have more information about the particular documents or testimony at issue, it is difficult to understand on what basis, in that circumstance, a former president has authority to decide what is in the public interest. A White House or agency official will often have much more information than the president about the nature of particular communications subject to a claim of executive privilege. But those officials have no authority to decide to withhold information to protect the public interest. That decision belongs to the president alone. A former president no longer has any authority to make decisions about the public interest. In this case, the people chose to give that authority to Biden, not Trump, in the 2020 election.
The proper interpretation of the GSA case and the role of former presidents has been a subject of controversy in executive orders governing the disposition of presidential records. 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. The Bush order stated that “the former President independently retains the right to assert constitutionally based privileges,” even if the incumbent president did not support the assertion. President Obama revoked that order on his first full day in office and restored the framework that had previously governed the records of living, former presidents. Under Obama’s order, the archivist first independently evaluates the records request and makes a recommendation. But ultimately, the archivist must “abide by any instructions given him by the incumbent President,” no matter what the former president has directed, and current regulations governing the disclosure of former presidents’ records to Congress allow the former president to assert privilege only when the incumbent president supports that assertion.
This issue arose recently in the confirmation hearings of Brett Kavanaugh. Kavanaugh had served in the White House Counsel’s office during the George W. Bush administration. Thousands of presidential records held by the archivist were responsive to the congressional requests for information relating to the confirmation hearings. Attorneys for former president Bush reviewed all the records, erring “on the side of transparency and disclosure,” but they also provided those documents to the Trump White House and Department of Justice for review. Days before the hearings, the attorney for Bush informed the committee that the Trump administration had directed them to withhold more than 100,000 pages that reflected internal White House deliberations and presidential communications traditionally protected by executive privilege. The letter made clear the choice to withhold the information had been made by the incumbent president, not former president Bush.
Trump and his attorneys, if they choose to, will undoubtedly rely on GSA to claim he retains the authority to assert executive privilege. And they may even claim that certain former presidential advisers, such as Cippolone, cannot appear before the Senate at all because they enjoy absolute immunity from compelled congressional testimony. Trump relied on the immunity doctrine, and other doctrines related to executive privilege, to direct a number of advisers and former advisers—including Bolton—not to testify in the House impeachment inquiry. Presumably, Biden would not support these claims, whether because he adopts the general principle that the privilege does not apply to impeachment or because he concludes that the Senate’s specific need for this information outweighs the executive branch’s interest in keeping it confidential. (I described the traditional balancing inquiry in respect to Bolton’s potential testimony here.) It’s also possible the witnesses would refuse to abide by any direction issued by Trump to remain silent, though the ultimate choice of whether to receive their testimony would rest with the Senate. The Senate would thus face an unprecedented situation on multiple levels—an assertion of executive privilege by a former president that the incumbent does not support in the context of impeachment. Whatever the Senate’s resolution, it will establish a new precedent for future Congresses.
In the context of impeachment, precedents are vital, perhaps more so than in other areas of law given their scarcity. Just as the Belknap precedent has taken on an outsized role in the question of whether a president who is impeached while in office can be tried on the articles after leaving office, any precedent set in this Senate trial with respect to executive privilege will be studied and relied on in future impeachment trials. If the Senate allows Trump or witnesses to take shelter in executive privilege—or one of its related doctrines—in the context of an impeachment trial, it will establish and validate its applicability to impeachment. Future presidents and other executive branch officials facing impeachment would have more than adequate grounds to claim that executive privilege is applicable to impeachment. That is not a choice senators should take lightly, particularly when it is highly questionable whether a former president facing impeachment can authoritatively say what is in the public—as opposed to his personal—interest.
There is another—perhaps more immediately important—issue to consider as well. It is quite possible, indeed likely, that there will be congressional investigations into events that occurred during the Trump administration. Indeed, Senate Democrats have already sent a letter to the Justice Department directing it to preserve all documents and communications, including emails and text messages, related to Trump and Clark’s election-contest plan. In the course of some of those investigations, the committees may subpoena records or testimony not just from an executive branch agency but also from the Trump White House. Faced with such requests to the archivist for Trump’s presidential records, the Biden administration would have to weigh institutional interests in confidentiality—for which career officials would likely advocate—against intraparty pressure to release the information. After undertaking such an inquiry, it would not be surprising if the Biden administration determined that the congressional need for the information justified its release, despite its presumptive confidentiality. Trump, however, may disagree, and he may attempt to assert executive privilege to prevent the release of the materials, perhaps even suing the archivist if necessary to enjoin the release of the records on the basis of his assertion.
If Trump attempts to assert executive privilege in the coming impeachment trial and Biden refuses to back it, it would be the first time, to my knowledge, that a former president has attempted to assert executive privilege against Congress contrary to the wishes of the current president. Nothing in GSA or any other judicial decision compels a particular result when such a clash exists. Nor are there relevant congressional precedents. The Senate should tread carefully. Even if Trump’s Republican allies in the Senate feel tempted to support any claims of privilege his legal team decides to assert, they should stop to consider the precedent their actions will set. The Senate should not lightly concede that a former president has the authority to direct the withholding of information subpoenaed by Congress, regardless of the incumbent president’s determination of what the public interest requires. And it should especially not do so in the context of impeachment.