Is there any type of "Executive Privilege" for ex-Presidents?
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October 27, 2021, 09:00:48 PM

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  Is there any type of "Executive Privilege" for ex-Presidents?
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Author Topic: Is there any type of "Executive Privilege" for ex-Presidents?  (Read 310 times)
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BRTD
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« on: October 13, 2021, 12:56:47 PM »

Asking because Trump is citing this now while trying to keep documents from being released to the January 6 Commission and prevent his former aides from being subpoenaed to testify.

Sounds like nonsense to me. The Justice Department has also hinted of this continues they'll being charges against aides who refuse subpoenas.
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Butlerian Jihad
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« Reply #1 on: October 13, 2021, 11:59:40 PM »

This is the first I've heard of an ex-President invoking it. I suspect that it might be an untested area of the law, which worries me given the current SCOTUS.
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True Federalist (진정한 연방 주의자)
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« Reply #2 on: October 14, 2021, 02:25:07 AM »
« Edited: October 19, 2021, 12:46:49 AM by True Federalist (진정한 연방 주의자) »

Executive privilege is not absolute. That said, the reasoning that leads to the doctrine of executive privilege in the first place applies equally well to ex-Presidents in my opinion. However, I think the information being sought probably wouldn't be shielded by executive privilege even if were being sought from a sitting President. I think any court rulings will choose to first address whether executive privilege would apply if similar information were being sought from the current President, and only address whether it also applies to an ex-President if the court determines that a sitting President would be able to invoke executive privilege.
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StateBoiler
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« Reply #3 on: October 14, 2021, 06:20:29 AM »
« Edited: October 14, 2021, 06:24:28 AM by StateBoiler »

It should apply to ex-presidents in some regard. Otherwise, you're just going to get score-settling trials once someone leaves office just to make the former president look bad. To pull an example, it's easy to imagine Republicans take power in Congress in 2017 they drag Ben Rhodes and company to be called to testify on the Iran nuclear deal.

The Democrats here though are likely going to do what they should have done the first time with Trump's first impeachment trial. Someone is not going to comply with a congressional subpoena: that's contempt of Congress and have them arrested.
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« Reply #4 on: October 14, 2021, 11:49:03 AM »

This is the first I've heard of an ex-President invoking it. I suspect that it might be an untested area of the law, which worries me given the current SCOTUS.
The same SCOTUS that shot down Trump's similar attempts to hide his tax returns?

Also can't see Gorsuch voting for such a wide interpretation of executive privilege. So assuming Roberts doesn't either, there you have it.
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brucejoel99
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« Reply #5 on: October 14, 2021, 04:52:02 PM »

Asking because Trump is citing this now while trying to keep documents from being released to the January 6 Commission and prevent his former aides from being subpoenaed to testify.

Sounds like nonsense to me. The Justice Department has also hinted of this continues they'll being charges against aides who refuse subpoenas.

The one assertion that sticks out the most to me in all of this is the one that relates to Bannon. Trump is claiming that his privilege somehow extends to a random person who wasn't even an employee of the executive branch at the time, an approach which no previous President has even attempted to assert, let alone an approach that any court has ever actually upheld. Not to mention, privilege doesn't allow somebody to blatantly defy a subpoena, an action by virtue of which Bannon has committed a crime by engaging in. For sure, Bannon could attempt to assert privilege in order to refuse to answer specific questions or hand particular documents over, an attempted assertion that could then be ultimately resolved through litigation, but Bannon's current stance on the matter is just straight-up opening himself up to criminal liability.


This is the first I've heard of an ex-President invoking it. I suspect that it might be an untested area of the law, which worries me given the current SCOTUS.

Nixon asserted it in response to the Presidential Recordings & Materials Preservation Act of 1974 that ordered the GSA to seize his papers & tapes, thereby resulting in 1977's Nixon v. GSA, in which the Court held that former Presidents can assert privilege, but all that that means is that a former President can merely be heard in court on the matter, with it certainly not meaning that such a former President's claims would &/or should then succeed in court. Ultimately, current precedent dictates that privilege is something that belongs to the presidency as an institution rather than any one President as an individual, hence why it's an incumbent President who ultimately has the final pre-court say on invocations. (Incidentally, everything from "former Presidents" on is the answer to OP's question: potentially, subject to court rulings.)


The Democrats here though are likely going to do what they should have done the first time with Trump's first impeachment trial. Someone is not going to comply with a congressional subpoena: that's contempt of Congress and have them arrested.

The reason that they didn't send criminal referrals of contempt to DoJ in 2019 was because they would've been meaninglessly toothless with Barr as A.G. at the time. Sure, they could've still done so, but his DoJ would've just told Congress to f**k off. This time, however, that's obviously not a problem since Garland is now A.G., which is why you're seeing the likes of Patel, Meadows, & even Scavino engage with the Jan. 6th committee in good-faith - even though Trump begged them not to do so - because they're rational & obviously don't wanna open themselves up to criminal liability. As for Bannon & his blatant refusal to engage with the committee by complying with his subpoena, he should frankly be sh*tting his pants, unless he's intent on becoming some sort of Trumpist martyr or something like that, but even then, he doesn't seem like the type of guy to martyr himself like that, given that he's clearly scared of prison on account of his ultimately-successful begging of Trump for a pardon earlier this year, so his actions right now are making precisely 0 sense insofar as he's once again opening himself to criminal liability, even though he knows full well that the only reason that he got off last time was because he had a pardoning ally in the Oval Office, which is obviously no longer the case this time.
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StateBoiler
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« Reply #6 on: October 18, 2021, 07:55:46 AM »
« Edited: October 18, 2021, 07:59:37 AM by StateBoiler »

Asking because Trump is citing this now while trying to keep documents from being released to the January 6 Commission and prevent his former aides from being subpoenaed to testify.

Sounds like nonsense to me. The Justice Department has also hinted of this continues they'll being charges against aides who refuse subpoenas.

The one assertion that sticks out the most to me in all of this is the one that relates to Bannon. Trump is claiming that his privilege somehow extends to a random person who wasn't even an employee of the executive branch at the time, an approach which no previous President has even attempted to assert, let alone an approach that any court has ever actually upheld.

This is what I never understood about Giuliani in again, the 1st impeachment. He was never an executive branch employee, so if called to testify by Congress he had no executive privilege to fall back on. He was clearly neck-deep in the Ukraine stuff, so why wasn't he called in?

The Democrats were very limited in what they did, scoring a lot of own goals in my opinion. The only thing I can think of is they intentionally did not want to strengthen their case against Trump to the point that when Republicans control Congress they don't use the precedent Democrats set against them. Which again shows they never had any real consideration to actively removing him from office, meaning it was all a waste of time.

I forget his name now but there was one guy that was called to Congress to testify but Trump told him not to, so filed a suit and asked a court "who should he listen to?" which is an absolutely valid thing to do there. Pelosi pulls his subpoena for the case to be declared moot. If you're a person that does not care about partisan bullsh**t, what a bullsh**t move that shows you either don't believe in your case or want to retain the power of executive privilege for underlying employees when your party holds the presidency. When Pelosi withdrew the subpoena in response, if I was any one of the other people that was subpoena'd and did not show up, I would've immediately filed the same case because she demonstrated her vulnerability. What's the worst that could've happened, Pelosi would withdraw my subpoena making me no longer potentially in contempt of Congress?
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brucejoel99
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« Reply #7 on: October 18, 2021, 08:39:08 PM »

Asking because Trump is citing this now while trying to keep documents from being released to the January 6 Commission and prevent his former aides from being subpoenaed to testify.

Sounds like nonsense to me. The Justice Department has also hinted of this continues they'll being charges against aides who refuse subpoenas.

The one assertion that sticks out the most to me in all of this is the one that relates to Bannon. Trump is claiming that his privilege somehow extends to a random person who wasn't even an employee of the executive branch at the time, an approach which no previous President has even attempted to assert, let alone an approach that any court has ever actually upheld.

This is what I never understood about Giuliani in again, the 1st impeachment. He was never an executive branch employee, so if called to testify by Congress he had no executive privilege to fall back on. He was clearly neck-deep in the Ukraine stuff, so why wasn't he called in?

The Democrats were very limited in what they did, scoring a lot of own goals in my opinion. The only thing I can think of is they intentionally did not want to strengthen their case against Trump to the point that when Republicans control Congress they don't use the precedent Democrats set against them. Which again shows they never had any real consideration to actively removing him from office, meaning it was all a waste of time.

I forget his name now but there was one guy that was called to Congress to testify but Trump told him not to, so filed a suit and asked a court "who should he listen to?" which is an absolutely valid thing to do there. Pelosi pulls his subpoena for the case to be declared moot. If you're a person that does not care about partisan bullsh**t, what a bullsh**t move that shows you either don't believe in your case or want to retain the power of executive privilege for underlying employees when your party holds the presidency. When Pelosi withdrew the subpoena in response, if I was any one of the other people that was subpoena'd and did not show up, I would've immediately filed the same case because she demonstrated her vulnerability. What's the worst that could've happened, Pelosi would withdraw my subpoena making me no longer potentially in contempt of Congress?

Suffice it to once again say that congressional subpoenas are meaningless if the DoJ isn't willing to prosecute for contempt.
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politicallefty
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« Reply #8 on: October 24, 2021, 07:04:32 AM »

I don't see how there's an executive privilege for ex-Presidents. Article II establishes the executive branch, which is led by the President of the United States. Nowhere in the Constitution is the concept of executive privilege established. The notion of executive privilege is under the implied powers of the Presidency, just as oversight is an implied power of Congress and judicial review is an implied power of the Judiciary/Supreme Court. Unlike the other powers though, executive privilege is limited by the Constitution in the sense that the President is enforcing and executing the laws established by Congress. I'm not sure where the line is or should be, but it should err on the side of oversight and openness (except in cases of national security).

I would say that there is no executive privilege for an ex-President. Upon leaving office, he becomes a private citizen, with all that entails. The Constitution is clear in that executive power is vested in the President of the United States. The only individual that has or should have the power to invoke executive privilege should be the sitting President. If the sitting President chooses not to invoke the privilege, that should be the end of it. An ex-President does not hold any powers under the Constitution apart from the rights afforded to every other person under its jurisdiction. I've certainly never heard of any private individual's right to executive privilege without the backing of the President himself.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #9 on: October 24, 2021, 06:59:52 PM »

I don't see how there's an executive privilege for ex-Presidents. Article II establishes the executive branch, which is led by the President of the United States. Nowhere in the Constitution is the concept of executive privilege established. The notion of executive privilege is under the implied powers of the Presidency, just as oversight is an implied power of Congress and judicial review is an implied power of the Judiciary/Supreme Court. Unlike the other powers though, executive privilege is limited by the Constitution in the sense that the President is enforcing and executing the laws established by Congress. I'm not sure where the line is or should be, but it should err on the side of oversight and openness (except in cases of national security).

I would say that there is no executive privilege for an ex-President. Upon leaving office, he becomes a private citizen, with all that entails. The Constitution is clear in that executive power is vested in the President of the United States. The only individual that has or should have the power to invoke executive privilege should be the sitting President. If the sitting President chooses not to invoke the privilege, that should be the end of it. An ex-President does not hold any powers under the Constitution apart from the rights afforded to every other person under its jurisdiction. I've certainly never heard of any private individual's right to executive privilege without the backing of the President himself.

At best, your argument can be used to support invocations of executive privilege to those made by the sitting President, not to only those made on behalf of a sitting President. The reasoning for applying executive privilege to discussions with the current President, that ey can receive unvarnished advice from them subordinates, applies just as much to ex-Presidents. As I expressed earlier in a different thread, I expect that SCOTUS will first decide whether the information currently being requested meets the requirements for invoking executive privilege on behalf of a current President by the current President, and only if it does (which I expect they won't, tho I may be wrong) then go on to explore the issues of whether it applies on behalf of an ex-President and who must sign off on it.
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