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(18,486 posts)
Fri Sep 24, 2021, 04:47 PM Sep 2021

Several legal pundits are saying former presidents can't invoke executive privilege. That's not true [View all]

Last edited Fri Sep 24, 2021, 10:50 PM - Edit history (2)

The Supreme Court has explicitly held that former presidents can indeed exert executive privilege.

"It is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them ...

"The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure."

---Justice Brennan, writing for the majority in Nixon v. Administrator of General Services, 433 U.S. 425 (1977) https://supreme.justia.com/cases/federal/us/433/425/#tab-opinion-1952361

It doesn't get any clearer than that.

Executive privilege can be invoked either by a current president for communications between him and his aides or for communications by former presidents during their tenure in office. Former presidents can invoke the privilege for communications during their time as president.

The current president's declination to invoke the privilege would surely carry great weight with the courts because they are responsible for the country. But a former president has a right to invoke the privilege, even if the court doesn't accept it. And it's not necessarily a sure thing that the privilege doesn't exist if the current president chooses not to invoke it.

For example, imagine if Trump and his henchmen, including various U.S. Attorneys, Republican Senators and Members of Congress had decided to really go after President Obama and subpoenaed his Chief of Staff, Cabinet Secretaries (including Hillary Clinton) and other staffers, demanding that they testify about all of their deliberations on various matters.

Surely, former President Obama could have invoked executive privilege, while the Trump White House probably would have declined to do so. I doubt any court in that situation would rule that Obama could not invoke the privilege or that those communications weren't privileged and forced Obama's staff and appointees to testify because Trump's views controlled.
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I guess this would be true even if the evidence is requested as part of a criminal investigation? wcmagumba Sep 2021 #1
No, it doesn't. StarfishSaver Sep 2021 #3
Okay, thanks for a great explanation, I'm not a lawyer but it sounds as though drumphy wcmagumba Sep 2021 #9
Glad to explain it - I know it's confusing. Even skilled lawyers are getting it wrong StarfishSaver Sep 2021 #12
Executive Privilege and Former Presidents: Constitutional Principles and Current Application PoliticAverse Sep 2021 #2
Thanks for posting this. From your link: StarfishSaver Sep 2021 #6
The key point I got from that document was... PoliticAverse Sep 2021 #10
Yes, I totally agree with that StarfishSaver Sep 2021 #11
It also says that is is the applied in the constitutional functions of a president Bev54 Sep 2021 #13
Yes - that's one of the reasons I think his attempt to claim executive privilege will fail StarfishSaver Sep 2021 #14
heard to assert doesnt mean they will actually get it IMO. nt msongs Sep 2021 #4
Exactly StarfishSaver Sep 2021 #7
I think people really under estimate how much power a former President still wields fescuerescue Sep 2021 #5
Possibly StarfishSaver Sep 2021 #8
Thanks for explanation Midnightwalk Sep 2021 #15
And the "heard to assert" fits with the rule that Trump has 60 days now to make this claim. pnwmom Sep 2021 #16
Kick StarfishSaver Sep 2021 #17
The current POTUS gets to make the decision on Executive Privilege LetMyPeopleVote Sep 2021 #18
Barbara McQuade is wrong.The decision is not solely up to Biden. StarfishSaver Sep 2021 #19
Biden White House leans toward releasing information about Trump and Jan. 6 attack, setting off lega LetMyPeopleVote Sep 2021 #20
You're missing the point StarfishSaver Sep 2021 #21
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