A congressional committee investigating the January 6, 2021 assault on the U.S. Capitol has asked the National Archives to turn over Trump administration records that could shed light on any potential involvement by the former president or his aides. The Biden administration has said it will likely comply with the request. But in an effort to keep the records out of investigators’ hands, Donald Trump has signaled he will try to assert executive privilege.  
The legal doctrine was codified in 1972 amid the Watergate scandal, when the U.S. Supreme Court first acknowledged presidents’ general need to communicate confidentially with their aides, while denying President Richard Nixon’s claims to an unqualified privilege and ordering him to release secret White House tapes. While the case foreshadowed the downfall of Nixon, who resigned a little over two weeks later, it also established a legal precedent for the concept of executive privilege that would benefit the office of the president for decades to come.   
To explain executive privilege, where it came from, and how it might apply to former President Trump’s records, Harvard Law Today turned to former White House Counsel Neil Eggleston. A lecturer on law at Harvard Law School, Eggleston has also served as deputy chief counsel for the congressional committee investigating Iran-Contra and represented the Clinton White House in the Whitewater and Monica Lewinsky investigations. He is currently a litigation partner at Kirkland & Ellis LLP. 

Harvard Law Today: What is executive privilege and how does it work?

Neil Eggleston: Executive privilege is a doctrine that has grown up to protect, generally, the internal communications within the White House and with the president of the United States. Essentially, the doctrine is a balancing test, as Chief Justice Burger articulated in United States v. Nixon. The chief justice recognized that to be effective, a president needed to be able to consult with his advisers and that, to get the right kind of advice, he had to have some level of confidence that advice would remain confidential, or else people might withhold their advice for fear of it getting out. On the other hand, the chief justice held that in circumstances of a demonstrated need, the executive privilege would fail. So, it’s a qualified privilege, not an absolute privilege. And as we all know, the Supreme Court ruled unanimously that President Nixon could not protect his communications under executive privilege.

HLT: Beyond presidents themselves, who else’s communications might be protected by executive privilege?

Eggleston: I actually argued a related case in the Clinton administration involving former U.S. Secretary of Agriculture Mike Espy, called In re Sealed Case, in which the D.C. Circuit Court held that executive privilege covered communications between the president and his senior advisers. It can also cover communications between a senior adviser and other advisers that they need to consult in order to advise the president.

HLT: Where and when did this doctrine start? In the Nixon case?

Eggleston: I think one of the first instances was Thomas Jefferson refusing to produce some documents that Congress had requested. So, this notion that there’s a zone of communications involving the president that are protected is not new with us. What was somewhat new with Nixon and, obviously, has gotten more intense since then, is litigation over the issue. The Supreme Court before Nixon really hadn’t had occasion to deal with it. The litigation really started with Nixon. I’m not sure it was litigated again until the Espy case I argued. Then, obviously, in the Trump era, this was litigated over and over and over again.

HLT: What are the arguments for and against executive privilege?

Eggleston: The strongest argument in favor is that presidents of the United States have really hard jobs and they need advisers to assist them in making decisions. You want advisers to feel free to explore a range of options, including options that might be unpopular, and to have a free flow of conversation with the president in order to develop the best possible options. The concern is that if advisers thought that they could get called before Congress or a civil deposition and be compelled to testify about the advice they discussed with the president, they would be less likely to be completely transparent, and less willing to explore all options with the president. The concern was that advisers may pull their punches if they thought those communications would become public. Having served in two White Houses for President Clinton and for President Obama, I think that’s valid.

The biggest argument on the other side is that executive privilege cannot be used to hide wrongdoing. The concern would be that the privilege would be used not because you need confidential communications with the president to get the best result, but in order to hide wrongdoing at the highest levels of government. And as then-Chief Judge Patricia Wald recognized in the Espy case, that would be a misuse of the privilege.

When I was deputy chief counsel for Congress in the Iran-Contra investigation, President Reagan waived executive privilege because the issue essentially was related to whether there was wrongdoing in the White House itself. In a lot of the Clinton administration investigations, executive privilege was not asserted. To the extent it was — and I litigated executive privilege claims in the Lewinsky matter as well — we lost in district court under the theory that there was a heavy need for the information.

HLT: Is there anything that is absolutely privileged under almost any circumstances?

Eggleston: Before President Trump and the whole Ukraine matter, I would have said diplomatic communications and national security communications, possibly with other governments and the like, are most highly protected. But then we saw in the Ukraine matter that presidents can misuse those communications as well. But even with those, the privilege is a qualified privilege and with a sufficient showing of need, or as in Ukraine, a sufficient showing of wrongdoing, the privilege will fall.

HLT: Former President Trump has said he will assert executive privilege to prevent records related to the January 6 attack on the Capitol being turned over to Congress. Can he do that?

Eggleston: The law is actually fairly clear on this, although there’s always the issue of whether this new Supreme Court would follow the pretty settled law or not. So, let me give you two answers, the first administrative and the second legal. First, neither the current president nor the prior president has physical custody of the materials from the prior presidents. All of these materials are stored at the National Archives. I dealt with this as the last White House counsel for Obama, when we had the enormous processes of transferring our data out of the White House and to the Archives. If there is a request for what would otherwise be privileged material regarding a prior presidency, representatives of the prior president are supposed to consult with representatives of the current president, and then the current president decides.

When I was White House counsel, that happened from time to time with regard to communications out of the George W. Bush White House. My office would consult with the person that President Bush had designated to represent him for this purpose. During my time as White House counsel, there was never an objection from the prior president to releasing those materials. So, we never actually had to test to the limits of the law.

Separately, there’s a Supreme Court case called Nixon v. General Services Administration, the agency that had possession of the records of former President Nixon. Congress had passed a law to allow the GSA to seize and preserve all President Nixon’s presidential records. President Nixon sued, claiming the act was unconstitutional. The Supreme Court upheld the law and basically decided that the current president is the right person to make judgments about the assertion of executive privilege. That’s because under our system, the authority attaches to the office, not the human. President Biden has this power because he’s president, not because he’s Joe Biden. And when President Trump was in office, he had the power because he was President Trump, not because he was Donald Trump. So, I think the law is pretty well settled. But again, we have many years later a very new Supreme Court.

HLT: President Biden’s spokesperson has said the current administration is likely to turn the records over to Congress. What options does former President Trump have to stop that from happening?

Eggleston: A lawsuit would be his only option. I assume he would sue the archivist seeking an order barring the National Archives from turning over the information. Under U.S. law, you can’t get an injunction against the president, so you can’t sue him. The way to get around that is to sue the people who would actually do the work. So, I think he would sue the archivist — just as he sued his accounting firm and his bank in the Congressional subpoena litigation that went to the Supreme Court — seeking an order barring them from turning over his communications. I think the lower courts certainly would have to deny his motions, because the Nixon GSA case is pretty binding. So, he would have to see if he can get it heard by the Supreme Court. I certainly hope the Court would refuse to hear it, but who knows what they’ll do.

HLT: It seems like we only hear about executive privilege when there is a dispute, often including litigation. Do you think anything could or should be done to reform or clarify this area of law?

Eggleston: Other than through litigation, I don’t really think there’s much way to get this settled. Even if Congress passed a statute, a former president could always say the statute is unconstitutional because they are the one who should be able to decide. A statute setting this all out would only tell the court how Congress thought about it. But it would still require a court to decide whether the current president or the prior president has the power to make those determinations.

Even if the court concluded that President Trump had at least some power to raise executive privilege issues, it would also need to conclude that there was not a significant showing of need by the congressional committee seeking the records and the assertion of privilege wasn’t designed to cover up wrongdoing. I doubt President Trump could ever convince a court that there’s not a compelling need for communications involving whether he was fomenting an armed insurrection against the Capitol. I don’t think President Trump would win on either question, but to succeed in asserting privilege he’d have to win on both.