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  • Ryan Wittler

Can Trump Use Executive Privilege to Block the January 6 Committee?

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On Tuesday, President Trump filed a lawsuit seeking to block the National Archives from handing over documents requested by the January 6 committee. In the suit, Trump cites executive privilege, but will it work?

Some background:

Executive privilege refers to the right of the president and other executive branch officials to withhold certain communications, e.g., documents, recordings, transcripts of meetings, etc.

Presidents have often used the privilege to keep information guarded, whether it be in the national interest or another valid reason. However, presidents have also consistently declined to invoke the privilege, as it’s always a balancing act between guarding the work of the executive branch and keeping Congress or the public informed.

For example, President Bush gave the 9/11 Commission access to hundreds of sensitive documents from the elder Bush and Clinton administrations. He and Vice President Dick Cheney also gave testimony to the commission.

Before that, President Reagan made several executive-branch officials available to the committees investigating the Iran-Contra affair, also handing over sensitive documents, including his personal diaries.

So, how about with Trump?

First, since he’s no longer president, Trump can’t even invoke the privilege, as that power actually resides in the current president. For his part, Biden has so far declined to assert the privilege over Trump’s documents from January 6, finding it isn’t in the country’s interest to keep them hidden.

Second, as Cardozo School of Law professor Kate Shaw wrote in The Atlantic, as the power to assert the privilege is “far from absolute,” we look to the countervailing interests, and, in Shaw’s opinion, they really don’t get any more important than investigating a sitting president’s attempt at overthrowing an election.

Finally, also according to Shaw, the executive branch has long maintained that serious allegations of executive-branch wrongdoings severely undermines -- if not fully vitiates -- the privilege.

So, when you hear Trump threatening to “exert” executive privilege (which, just to be super annoying, is technically wrong, as the privilege is either “invoked” or “asserted” not “exerted”) just think of a lawsuit (which probably won’t go well for him either).

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