Executive privilege for ex-presidents? Not this time

President Biden’s decision not to support former President Trump’s assertions of executive privilege over certain documents that the House Select Committee to Investigate the January 6 Attack on the United States Capitol is a significant victory for government transparency and the exercise of power. 

To many Americans, executive privilege is an obscure doctrine that is too often shrouded in partisan controversies. Executive privilege is a recognized constitutional-based power of presidents to withhold information from those who have compulsory powers such as congressional committees.

But it is not an absolute right, and, when asserted, it must be weighed against other governmental needs such as access to information germane to an investigation. The balancing test between competing government interests, though, becomes less complicated when the claim of privilege is made by a former president who no longer can claim to possess constitutional-based authority of any kind.

Despite the extraordinary nature of the House investigation at hand, the issues of ownership and disclosure in this case are clear. All records produced by a president and his administration during his time in office are property of the United States and more generally of the American people. Such papers and records are not private property to be controlled by former presidents. 

Indeed, there are occasions when the public release of information may compromise the national interest, particularly in matters pertaining to national security. But it is difficult in the current controversy to find any such basis for upholding the former president’s claim. 

The issue of former presidents and executive privilege have been debated in the past. In 2001, President George W. Bush issued an executive order that expanded the scope of executive privilege and placed high hurdles to the public access of presidential records by giving former presidents the ability to withhold records against disclosure requests. Soon after taking office in 2009, President Obama issued an executive order that effectively stripped from former presidents the ability to create blanket secrecy orders. 

President Biden, in so refusing to act to stonewall Congress, did well to uphold the value of transparency in our constitutional democracy. But he also acted as president to refuse a privilege assertion by his predecessor. This is exactly what the Constitution intended, as only one person is given the duties and power of president. No one else, especially a private citizen – even a former president – can also exercise presidential power. Despite arguments to the contrary, there are no laws or executive orders which can change that fundamental proposition. 

The current guidance on the use of executive privilege claims by former presidents dates to the 2009 executive order issued by Obama. Congress created the existing law on access to presidential records in the late 1970s. Although Biden is right to have upheld transparency and proper government actions, it is long past time for Congress to act to update the existing legal authority. 

The current law sets forth a reasonable requirement for incumbent presidents to make privilege claims on their records while they hold office. Like other private citizens, former presidents can restrict access to records only by way of the Archivist of the National Archives and Records Administration.

But the fact that former presidents have issued executive orders and otherwise made claims to expand the limits of executive privilege should give everyone pause on the permanency of this arrangement. That is why it is imperative for Congress to act and update the laws on presidential records.

Mark J. Rozell is dean of the Schar School of Policy and Government at George Mason University. Mitchel A. Sollenberger is professor of political science at University of Michigan-Dearborn. They are co-authors of numerous studies on executive privilege and most recently co-authors (with Jeffrey Crouch) of the book “The Unitary Executive: A Danger to Constitutional Government” (2020, University Press of Kansas).