Trump’s claim of executive privilege in the Jan. 6. inquiry, explained

Former President Donald Trump’s power to keep information from his White House secret became a central issue this week in the congressional investigation into the Jan. 6 attack on the Capitol by his supporters, raising untested legal issues about executive privilege.

On Monday, Trump sued the chairman of the House’s Jan. 6 committee and the head of the National Archives, in an attempt to block Congress from accessing White House papers that could reveal his actions and communications leading up to and during the riot. The select committee voted Tuesday to recommend holding Steve Bannon, an outside adviser to Trump, in contempt for defying a subpoena.

Here is a breakdown of the issues.

What is executive privilege?

It is a power claimed by presidents under the Constitution to prevent the other two branches of government from gaining access to certain internal executive branch information, especially confidential communications involving the president or among his top aides.

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While the Constitution does not mention this secrecy power, the Supreme Court has recognized it as implicit in the founding charter. The idea is that fear of future disclosure could impair presidents’ ability to perform their constitutional duties by chilling the candor of deliberations and the advice they receive.

A valid assertion of executive privilege can provide a lawful basis to defy a subpoena from Congress to provide documents or testimony.

Is Trump’s privilege claim valid?

We probably won’t know for a long time, if ever.

The constitutional line between a president’s secrecy powers and Congress’ investigative authority is hazy, with few Supreme Court guideposts. Historically, such disputes have usually been resolved through compromise, not judicial rulings.

But Trump has pursued a strategy of stonewalling and using the slow pace of litigation and appeals to run out the clock. If there is no Supreme Court ruling before the 2022 midterm and Republicans retake the House in that election, that new Republican majority would most likely drop any civil lawsuits before there is any definitive answer.

Even in that case, any criminal prosecutions brought by the Biden Justice Department would presumably continue. Separately, House Democrats have introduced legislation in response to the Trump presidency that would, among many other things, speed up lawsuits to enforce congressional subpoenas for executive branch information.

Is executive privilege an absolute power?

No. Even a legitimate claim of executive privilege may not always prevail in court if there are countervailing constitutional considerations.

For example, during the Watergate scandal in 1974, the Supreme Court upheld an order requiring President Richard Nixon to turn over tapes of his Oval Office conversations and rejected his claim to an “absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” In that case, the justices ruled, the judicial need for the tapes for use as evidence in a criminal trial outweighed Nixon’s general interest in confidentiality, especially since the matter did not involve military or diplomatic secrets.

May ex-presidents invoke executive privilege?

Yes, but courts may view their claims with less deference than those of current presidents.

In a 1977 case challenging a law related to the control of White House files from the then-former Nixon administration, the Supreme Court said Nixon could make a claim of executive privilege even though he was out of office.

“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 court wrote.

What if the current president disagrees?

Judges will take that disagreement into account in assessing the strength of the ex-president’s claim.

In the 1977 case challenging the law about control of Nixon-era White House files, the Supreme Court noted that his successors — Gerald Ford at an earlier stage in the case, and Jimmy Carter by the end — did not support his claim. And despite saying Nixon was permitted to assert executive privilege as an ex-president, the court ruled against him.

Still, the court also suggested that Nixon might be able to block the release of some of his papers in the future. Nixon never sought to do so, however, and there has not been a Supreme Court case over access to specific information that involves an executive privilege disagreement between a current president and a predecessor.

Does Biden support Trump’s invocation of the privilege?

No. President Joe Biden has declined to assert executive privilege to protect his predecessor’s Jan. 6-related materials from disclosure, instead instructing the National Archives to provide them to Congress 30 days after notifying Trump, absent any court order to the contrary.

Biden determined that under the circumstances — the need for a “full accounting” of an “unprecedented effort to obstruct the peaceful transfer of power” to “ensure nothing similar ever happens again” — keeping such documents secret from Congress and the public was not in the public interest, his White House counsel, Dana Remus, also told the head of the National Archives in a letter this month.

“The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself,” she wrote.

Is Steve Bannon covered by executive privilege?

This is unclear. If any contempt finding against Bannon evolves into legal action, it would raise the novel legal question of whether or how far a claim of executive privilege may extend to communications between a president and an informal adviser outside of the government.

While Trump told former aides that they should not cooperate with the Jan. 6 committee because the information the lawmakers want was privileged, Bannon had resigned, or was ousted, from his former White House position in August 2017. Since Bannon was not part of the executive branch at the time of the interactions with Trump that Congress wants information about, his case raises a twist for which there is scant definitive precedent.

What is contempt of Congress or court?

It is a sanction imposed on people who defy congressional subpoenas or court orders to provide documents or testimony, and it can lead to their imprisonment.

When Congress subpoenas witnesses, lawmakers can enforce those demands by holding recipients who balk in contempt. To do so, the investigating committee that issued the subpoena must first vote to recommend holding such people in contempt of Congress, and the full chamber then votes on whether to do so.

Congress could also file its own lawsuits against people who defy its subpoenas, asking judges to order them to comply with subpoenas. If the witnesses defy court orders, judges can hold them in contempt of court.

How can a person held in contempt be punished?

Being held in contempt of Congress does not by itself carry penalties beyond reputational harm, but Congress can then refer such findings to the Justice Department and ask for criminal contempt charges. If the executive branch agrees to pursue a case and prosecutors win a conviction, the act of defying a congressional subpoena is a misdemeanor crime, punishable by a fine of up to $1,000 and a term of one to 12 months in jail.

(In theory, lawmakers could also direct the House sergeant-at-arms to arrest recalcitrant witnesses and detain them until the end of its session, but that “inherent contempt” authority is viewed as obsolete; the Capitol has no prison cell and lawmakers have not tried to use this power since 1935.)

And if Congress brings a lawsuit and persuades a judge to order a witness to obey its subpoena — and the witness fails to get that order overturned on appeal — a judicial holding of contempt of court could also lead to a fine, imprisonment, or both.

Can executive privilege protect someone from contempt?

Yes, it can relieve a recalcitrant witness of legal liability for declining to obey a subpoena.

If the courts were to uphold an assertion of executive privilege over the information Congress is seeking, that finding would negate the subpoena and any consequences for disobeying it.