By Jenny A. Durkan / Special To The Washington Post
By granting former president Donald Trump’s request for a special master, federal Judge Aileen Cannon sent the Justice Department’s probe of classified documents at Mar-a-Lago down a side alley, encroaching on and delaying the federal prosecutors’ work.
The DOJ successfully appealed to the U.S. Court of Appeals for the 11th Circuit, wisely focusing on the national security issues at stake when classified documents go missing, and not on the thornier questions of whether former presidents can assert executive privilege. But Cannon then issued another ruling giving Trump’s lawyers more latitude than the special master had ruled, and the DOJ has signaled it plans a much broader appeal to the 11th Circuit.
Now Trump has petitioned the Supreme Court to step into the fray, seeking to allow the special master to review about 100 classified items. What happens next is likely to have effects well beyond the documents case, including putting the extent of executive privilege squarely in the hands of the conservative Supreme Court.
If the Supreme Court intervenes, it could expand a former president’s right to assert executive privilege, or limit Congress’s ability to impinge on executive powers through legislation, including the 1978 Presidential Records Act. Such a ruling could jeopardize other investigations into Trump’s affairs by Congress, the states and the Justice Department. The reason: They rely on documents and testimony they have access to largely because President Biden has taken the position that a sitting president can waive the privilege for his predecessors.
Executive privilege exists to ensure presidents obtain the best, candid advice when they make decisions. Some argue the privilege is meaningless if a politically opposed successor can waive it. Others counter that the privilege belongs to the Office of the President for the benefit of the country and not to any individual. Biden concluded that full access to the truth regarding efforts to block the peaceful transfer of power in the 2020 election best served the nation.
A Supreme Court decision favoring post-presidential privileges is not out of the question. Recently, Justice Brett Kavanaugh, in a concurring opinion on another Trump case, asserted that former presidents must retain some ability to assert executive privilege. His opinion points to support for at least balancing the need to produce evidence in governmental investigations and the need to protect a president’s right to confidential deliberations. Notably, it was former president George W. Bush, not then-President Trump, who decided what Bush administration records were available for Kavanaugh’s Senate confirmation hearing. That’s a reminder that there is some history of former presidents retaining say over whether subpoenaed or requested materials are subject to executive privilege.
Preserving the privilege for ex-presidents is not merely a favor for Trump. It is closely aligned to some conservatives’ belief in the supreme powers of the executive branch and the wrongful encroachment on those powers by judicial and congressional overreach. In a 2019 address to the Federalist Society, then-Attorney General William Barr denounced the erosion of a president’s constitutional powers by Congress, the judiciary and “so-called progressives [who] treat politics as their religion.” In Barr’s view, executive powers include “the powers necessary to protect the independence of the executive branch and the confidentiality of its internal deliberations.”
Though he has since seemed to have turned on Trump, Barr at the time stated his pride in “taking up the torch” to ensure conservative “originalists” were appointed to the Supreme Court, courts of appeals and district courts. And though he urged the DOJ to appeal Cannon’s rulings, he did so knowing the shared philosophy of the judges he had helped place on the bench. Barr also knows it is likely the Supreme Court, with a conservative majority of 6-3, will ultimately decide the issue.
If Trump’s right to assert privilege as a private citizen is expanded by the Supreme Court, or even the 11th Circuit, all pending investigations of Trump would need to assess what evidence was privileged and therefore off-limits to state and federal probes. Those assessments would be subject to court challenge by the former president. The results could range from lengthy delay to total dismissal of cases.
The DOJ investigation of classified documents at Mar-a-Lago presents profound legal jeopardy for Trump. When all the facts are known, the former president’s undoing could come from cheating the National Archives and hoarding classified documents. But an appeal in the case also presents risks to the Justice Department probe and the other investigations. Now that the door to appeal is open, expect Trump’s team and conservative allies to make it as broad as possible, both to undermine the many investigations pending against him and to broaden the powers of the executive branch they view as so broadly abused during his time in office.
Jenny A. Durkan was the mayor of Seattle from 2017 to 2021. She served five years as U.S. attorney for the Western District of Washington.