The U.S. Circuit Court of Appeals for Washington, D.C., has (correctly) denied former President Donald Trump’s attempt to test the boundaries of his own power to the detriment of the power of the executive and legislative branches. The ruling comes after Trump sued to prevent the National Archives from turning over White House documents related to the insurrection on Jan. 6 to a House select committee investigating it.
This is a case that helps define the boundaries of power between both the legislative branch and the executive branch and current and former presidents.
This case isn’t just about whether Trump can hinder or at least delay the work of this particular committee. This is a case that helps define the boundaries of power between both the legislative branch and the executive branch and current and former presidents.
Most of us are familiar with the facts: On Jan. 6, an angry mob ginned up by Trump’s lies about a stolen presidential election stormed our nation’s Capitol. Now a House committee is trying to determine exactly what Trump, members of his administration and others (like his outside counselor, Steve Bannon) knew and when they knew it. When it comes to something like a former president’s apparent attempt to undermine the Constitution and stage a coup, it is more than a tad useful to conduct a full investigation. This is exactly why the committee has asked for White House documents that could shed light on the events of Jan. 6.
President Joe Biden is waiving executive privilege over the first set of documents requested by the committee. The message from his White House counsel was, in not so many words, don’t try to subvert the Constitution and then use it as protection. Trump naturally disagreed, arguing that the documents should be covered by executive privilege and hence not released to the committee.
One thing worth noting is that executive privilege is a qualified (not absolute) privilege that allows presidents to, under certain circumstances, refuse to provide documents or testimony to Congress. Broadly, those circumstances include allowing presidents to keep matters related to national security or their private deliberations about sensitive topics private. If the public’s interest in disclosure outweighs the reasons underpinning executive privilege, the information should be disclosed.
When Trump, never one to let the law get in the way of filing a lawsuit, sued both the National Archives and Congress to prevent this investigatory committee from, well, investigating, he essentially made two arguments. Trump claimed that the committee has gone beyond its authority by asking for these documents and then — wait for it — also argued that his authority, even as a former president, to assert executive privilege and prevent the release of these documents is broader than we ever thought.
When it comes to something like a former president’s apparent attempt to undermine the Constitution and stage a coup, it is more than a tad useful to conduct a full investigation.
So, consistent with his philosophy when he was the president, Trump argued for a narrow view of the legislative branch’s power while arguing that his power, now as the past leader of the executive branch, is really quite large. It feels safe to say that if Trump were the current occupant of the Oval Office, he would be arguing that the former president has little power in this area (the opposite of his current strategy).
Hours of oral arguments made it clear that Trump was, once again, poised to lose. Earlier, in an opinion spanning almost 40-pages, a federal district judge resoundingly rejected Trump’s claims. The judge, correctly, concluded that when it comes to a fight between the current president and a former president, “the incumbent’s view is accorded greater weight.” This is because executive privilege, as the judge noted, is about protecting the presidency, not any single president. And it is the current occupant of the Oval Office who is best positioned to make determinations of executive privilege. In other words, Biden trumps Trump. Less than two weeks ago, during more than 3½ hours of oral arguments, the appeals court signaled that it agreed that Trump should fail in his attempt to expand his own power, perhaps best described as executive power while no longer being the executive. Former presidents should either never or almost never be able to override the determination of the current president when it comes to executive privilege. It is the current president who has to balance the interests of Congress in obtaining the information against the desire to ensure that executive privilege remains a robust protection for himself and future presidents. The appeals court struck the proper balance here between competing interests; it ruled against Trump and in favor of the power of Congress to ask for these documents and the power of the current president to hand over these documents. A contrary ruling would have allowed former presidents an inappropriate veto over congressional investigations and presidential determinations about the scope of executive privilege. That would harm the separation of powers and the public’s right to know about how their government functions, particularly in this case, in the event of an attempted coup. Now that Trump has lost, expect him to ask the Supreme Court to review the case. Because sometimes the name of the game is winning by running out the clock, even when you’re losing in court.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
