Jack Smith's Espionage Act Charges, Part 9: Executive Privilege
While all classified presidential records are available to a former President and his designated representative,1 § 2205(2)(b) of the Presidential Records Act allows a sitting President access to predecessors’ records “if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” The “need-to-know”2 requirement for classified presidential records was imposed by Congress on the incumbent.
The invocation of executive privilege3 in the defense’s vagueness challenge to 793(e)’s “authorization” element highlights the discordance of a successor administration concluding that a former President does not have a “need-to-know” those secret materials submitted for his consideration during his tenure. Courts recognize a former President’s ”authority to assert the executive privilege regarding Presidential communications.”4 In Trump v. Thompson, the appellate panel, after noting that “[t]he only privilege at issue in this appeal is the constitutionally based presidential communications privilege,”5 spelled out that “[t]he canonical form of executive privilege…is the presidential communications privilege,”6 and “the privilege that Mr. Trump asserts in his capacity as a former President is of constitutional stature.”7
In 2005, a district court’s justification for dismissing a lawsuit seeking disclosure of two Johnson-era President’s Daily Briefs included “the presidential communications privilege.”8 Although the district court credited the CIA’s claim that “[b]ecause the PDBs are direct communications between the CIA and the President for use in the conduct of his official duties, they are covered by the presidential communications privilege,”9 the Ninth Circuit upheld the dismissal on other grounds and did not reach the presidential communications privilege.10
The Archivist usually must wait 5 years before disclosing non-restricted presidential records.11 Other records can be restricted for up to 12 years.12 (Both Hur13 and Smith14 make the point that the subsection on 12-year restrictions is the only part of the act that refers to secret materials on national defense or foreign relations.) The 2014 amendment to the PRA set out ground rules for “claims of constitutionally based privilege against disclosure.”15
Can a former President not “need-to-know” the content of those communications with respect to which only he or the incumbent could invoke the presidential communications privilege?
44 U.S.C. § 2205(3): “the Presidential records of a former President shall be available to such former President or the former President's designated representative.”
Executive Order 13526, § 6.1(dd): “‘‘Need-to-know’’ means a determination within the executive branch in accordance with directives issued pursuant to this order that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.”
Transcript Of Motions To Dismiss, 3/14/24, p. 31:
THE COURT: Okay. Well, okay. Anything further on the three clauses that you have taken issue with in 793(e)?
MR. BOVE: There is two points that I would like to make, Judge.
One relates to the relevance of the executive privilege and what it means to -- to or not to -- to be or not to be unauthorized in this setting. These documents allegedly relate to briefings that were provided to the President. They relate to the types of sensitive, confidential communications over which typically there would be a -- it's qualified, we understand -- but a basis to invoke the executive privilege.
Reply Brief In Further Support Of Motion To Dismiss Counts 1–32 Based On Unconstitutional Vagueness, 3/13/24, p. 4: “Finally, the executive privilege, which is fully enforceable in the post-presidential timeframe, and presidential immunity, which President Trump had every reason to believe applied for the reasons set forth in our motion to dismiss based on that doctrine, made the concept of “unauthorized” possession even more vague with respect to President Trump.”
Public Citizen, Inc. v. Department of Justice and National Archives and Records Administration, 111 F.3d 168, 170 (D.C. Cir. 1997): “First, the former President in this context can hardly be viewed as an ordinary private citizen. He retains aspects of his former role — most importantly, for current purposes, the authority to assert the executive privilege regarding Presidential communications. Nixon v. Administrator of General Services, 433 U.S. 425, 448-49 (1977); Public Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988). In finding that he possessed such authority, the Court in Nixon adopted the Solicitor General's reasoning that, for a President to be able to give adequate assurances of confidentiality to his advisors, the assurances must last beyond his tenure. "[T]he 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." Nixon, 433 U.S. at 449.”
Trump v. Thompson, 20 F.4th 10, 23 n.6 (D.C. Cir. 2021)
Trump v. Thompson, 20 F.4th 10, 25 (D.C. Cir. 2021)
Trump v. Thompson, 20 F.4th 10, 32 (D.C. Cir. 2021)
Berman v. C.I.A., 378 F. Supp. 2d 1209, 1219 (E.D. Cal. 2005): “The CIA invokes Exemption 5 based on the presidential communications privilege. The court finds that the requested documents are covered by Exemption 5 based on the presidential communications privilege.”
Defendant’s Statement Of Points And Authorities In Support Of Its Motion For Summary Judgment at 16 (p. 21 of pdf), Berman v. C.I.A., No. S-04-2699 DFL-DAD (E.D. Cal., April 4, 2005)
Berman v. C.I.A., 501 F.3d 1136, 1141 n.2 (9th Cir. 2007): “Because we hold that the PDBs are protected under exemption 3, we do not decide whether the CIA's claims that they are also protected under exemption 1 and exemption 5 are valid.”
Hur Report, p. 181: “The order specifically addresses and is the primary source of law governing access to such information, in contrast with the Presidential Records Act, which mentions classified material in just one irrelevant provision.”
Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24, p. 9: “The PRA does not authorize the possession of classified information by a former President; indeed, it does not address the subject of classified information at all (other than in a provision that is not relevant here, governing restrictions on access to certain presidential records, including those that are properly classified, see 44 U.S.C. § 2204(a)(1)).”