Executive privilege, rooted in Article Two of the Constitution, empowers the president to confer confidentially with members of his staff without fear that these secret communications will be made public. It is akin to similar privileges such as those with one’s lawyer, priest, doctor and spouse. Their purpose is to encourage candid communications that are intended to remain secret.
But now, the Biden administration is claiming that communications made by President Donald Trump when he was in office can be waived by subsequent presidents. If this were the case, it would mean the end of executive privilege, since no one would be able to count on the future confidentiality of communications made with a sitting president.
That means President Joe Biden would not be able to assure his chief of staff or his secretary of state that their advice would not become the subject of a subpoena when the next president is sworn in. If a subsequent president is of a different party, he could play politics with the privilege and waive it in hopes of benefiting his party or reelection prospects. No one would be willing to give a sitting president controversial advice if he knew the next president had the power to disclose it.
For a privilege to have its intended effect—encouraging candid communication—its boundaries must be clear. Most privileges do not cover all communications; there are well-known exceptions for criminal or fraudulent communications. But if the communication was privileged at the time it was made, it cannot become unprivileged by a change of personnel.
The Supreme Court has not definitively resolved the general issue of whether a sitting president can impose a blanket waiver of all information provided in confidence to a prior president, because no president has ever tried to impose such a broad waiver. Indeed, President Biden has sought to waive President Trump’s privilege only as to certain documents, but his administration has suggested that he may be seeking a broader waiver.
Generally, these issues are raised in a narrow, fact-specific, case-by-case manner. But it is important to resolve the broad issue definitively so that presidents and their advisers know exactly what to expect if they were subpoenaed to disclose past confidences. I believe the Supreme Court would not uphold the kind of broad waiver by a sitting president of all communications to his predecessor, that some have suggested. Such a waiver would eviscerate executive privilege. If the High Court were to render such a dangerous decision, it should at least do so only prospectively. Past communications were made under a reasonable expectation of continuing confidentiality—an expectation that should be honored.
There is no guarantee that courts will do the right thing. Past cases generally recognize privilege, though they sometimes craft exceptions and impose balancing tests. But before a case gets to court, decisions are made by Congress and the Justice Department to challenge the claim of privilege. In making these challenges, they should take a long-term and nonpartisan view, rather than look for short-term partisan advantage. They should understand that a precedent set today against Republicans will surely be invoked against Democrats when the balance of power changes. Any challenge to execute privilege should pass the “shoe on the other foot test” and be equally applicable to both parties.
Empowering a sitting Democratic president to revoke the executive privilege of a past Republican president would destroy the privilege for all presidents. It would deny future executives the right to obtain needed confidential advice from trusted members of the administration and others. That would be bad for our nation and bad for both Democratic and Republican presidents.
One point should be beyond dispute: that before a member of a past administration, such as Peter Navarro, is indicted for refusing to violate a former president’s executive privilege, the courts should resolve the conflict and order him to testify. That is not the approach taken by the Biden Justice Department, which indicted Navarro without a judicial resolution or court order. That, in my view, is unconstitutional.
Alan M. Dershowitz, Felix Frankfurter Professor of Law, emeritus. He is author of “The Case for Color-Blind Equality in an Age of Identity Politics. Follow him on Twitter: @AlanDersh. His new podcast, The Dershow, is available on Spotify, YouTube and iTunes. Dersh.Substack.com
The views expressed in this article are the writer’s own.
