EXECUTIVE PRIVILEGE—A PRIMER
INTRODUCTION
The controversy over President Biden’s actual ability to govern, in fact, and his clear lack of mental acuity and physical decline has ripened into what will become a procedural and substantive battle between Congressional oversight functions and the deliberative and communicative processes of the Executive during the pendency of his term. Serious questions remain regarding the true genesis of Executive Orders and Pardons that may have been issued from unelected staffers without the knowledge or concurrence of the President. Some may claim this is a political fishing expedition—a term of art used wherein a blind subpoena is issued without a true aim. Others may claim that this is a serious issue of potentially criminal scandal—pay to play for pardons issued by autopen from interested staffers all the way to criminal fraud. The notion, in our modern era, that Hunter Biden or Jill Biden made policy while Biden labored under mental deficiencies is unacceptable and may well be unfounded. Any request for information issued by Congress in the form of subpoenas for witness testimony or specific physical items like memoranda, schedules, and calendars will most probably be met with a claim of executive privilege in its various forms. The purpose of this Article is to define the privilege so we may better understand the separation of powers in this Republic and how the judiciary will doubtless determine if it should be sustained.
THE PRIVILEGE EXPLAINED
Article II, Section 3 of the Constitution defines the core duties of the President who is vested with sole Executive authority. He carries out these functions through Officers of the United States as well as other advisors who act subject to his control and authority. The doctrine of executive privilege has been grafted onto the role of the Executive as a function of the constitutional separation of powers. It is not explicitly stated in the Constitution. The President may withhold information, communications, and documents in the possession of his Office or the Executive Branch generally, from the Legislative or Judicial Branches depending upon the circumstances then and there existing. In carrying out core Presidential functions the Chief Executive depends on the advice and counsel of his advisors, who would not advise freely if these communications were subject to scrutiny at will by the other Branches. It is analogous to the attorney-client privilege in theory but does not limit itself to communications in that realm. Likewise, deliberations and internal discussions within the Executive Branch generally may be subject to the privilege, if invoked. The current investigation by Congressman Comer’s Committee will venture into uncharted waters. The Supreme Court has, to my knowledge, never weighed in on the invocation of the privilege in the pure oversight context. Executive privilege disputes between the President and Congress in its pure oversight role have no definitive judicial guardrails. In Trump v. Mazars, a 2020 case involving the Congressional subpoena for Trump’s family bank records, President Trump’s legal team did not assert executive privilege, and the issue was not decided by the Supreme Court.
SOME HISTORY
Parallels between the Biden White House scandal and Watergate have been made. In fact, during Nixon’s presidency and beyond, the parameters of both the Executive Privilege and its related Deliberative Privilege were considered by the Supreme Court. In United States v. Nixon, the Supreme Court considered the claim of privilege in the context of a criminal investigation seeking presidential communications such as the famous “Watergate tapes.” Until this time there was no real definitive precedent on the privilege. Since the privilege usually involves a balancing of the facts weighed against the performance of the proper roles of the branches of government, the Supreme Court held that the privilege would give way considering the need to seek justice in a criminal matter and to uphold the rule of law. The Court stated:
“The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens, and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. In Nixon v. Sirica (1973), the Court of Appeals held that such Presidential communications are “presumptively privileged,” and this position is accepted by both parties in the present litigation. We agree with Mr. Chief Justice Marshall’s observation, therefore, that “in no case of this kind would a court be required to proceed against the president as against an ordinary individual.” United States v. Burr, 25 F. Cas., at 192
However, in the context of the criminal nature of the subpoenas, the balancing test favored disclosure:
“But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that the aim of criminal justice is that guilt shall not escape or innocence suffer. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.”
Accordingly, the subpoena issued by the United States District Court for the D.C. Circuit was upheld. However, here the situation does not, at this juncture, involve any more than Congressional oversight into the issue of how and under what circumstances critical proclamations, decisions, and pardons were generated and whether they were Article II exercises of power or abuses of power by a group of staffers who saw an opportunity to govern without the oversight of a functioning Chief Executive.
FORMER PRESIDENTS MAY CLAIM THE PRIVILEGE, AND WE KNOW THE INCUMBENT WILL NOT INVOKE IT TO PROTECT THE BIDEN WHITE HOUSE
Again, the Nixon Presidency generated rulings on this issue in what is known as “Nixon II” in jurisprudential circles. In Nixon II, the Supreme Court considered Nixon’s claim that after leaving Office his papers could be transferred to his library without being screened by the Archivist as the result of legislation signed into law four months after his resignation. The Presidential Recordings and Material Preservations Act permitted the Archivist to take possession of Presidential documents and recordings for the purpose of screening them to determine what was personal and what was official. Nixon’s legal team advanced a claim of privilege over most, if not all, of the documents in challenging the implementation of the law as to his papers and tapes. The Supreme Court held that he could invoke the privilege, but it was subject to the fact that President Ford did not invoke the privilege of the Office and this had the effect of diluting the claim in favor of the purposes of the law. They held:
“It is true that only the incumbent is charged with performance of the executive duty under the Constitution. And an incumbent may be inhibited in disclosing the confidences of a predecessor when he believes that the effect may be to discourage candid presentation of views by his contemporary advisers. Moreover, to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties (see United States v. Nixon, 418 U. S., at 714), a former President is in less need of it than an incumbent. In addition, there are obvious political checks against an incumbent’s abuse of the privilege.
Nevertheless, we think that the Solicitor General states the sounder view, and we adopt it:
This Court held in United States v. Nixon… that the privilege is necessary to provide the confidentiality required for the President’s conduct of office. Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the 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.”
WHAT GOES AROUND COMES AROUND
During the lawfare directed at former President Trump arising from the January 6th investigations and his possession of alleged classified information, then-President Biden did not invoke the privilege of the Office during Trump’s term, citing the “strong public interest” in obtaining communications between President Trump and his staff. My opinions regarding the purely political nature of these myriad state and federal indictments and civil suits have been stated in previous editions of this blog, and such views have been shared by greater minds than mine. President Trump will in no way protect the Biden White House or its staffers in light of his public statements regarding what was uncovered about the autopen as well as controversy over who really was in charge. The truth of these allegations may well be tested if the Committee is able to pierce the veil of presumptive privilege. The inner workings of the White House involve core Article II functions, and the circumstances of how policy was formulated and by whom involve the deliberations and functions that define the privilege as interpreted by the Supreme Court.
WHAT NOW?
The invocation of the privilege by Biden on behalf of his staff only comes as a final procedural step after what is called the “accommodation” process. Various staffers who have been made “famous” by a mendacious legacy media now crying “mea culpa” after four years of willful ignorance over very real issues of mental competency and physical deterioration of Biden in office have “lawyered up.” The White House physician, Dr. O’Connor, is apparently negotiating some form of transcribed testimony while the realities of HIPAA privacy protection over Biden’s treatment loom. We do not know what is going on with the others behind closed doors. The swirling allegations of criminality in the executions of pardons and access to the autopen registers may see an invocation of the Fifth Amendment by staffers. Negotiations may involve the Justice Department and the conferring of immunity to avoid that and for the purposes of getting to the truth. If Comer fails to get such cooperation and either the executive privilege or the self-incrimination privilege is invoked by individual staffers, it may well devolve into the impaneling of a Grand Jury, and the precedent does not favor the exercise of the Executive Privilege in that arena.
CONCLUSION
The current scandal will surely involve a Marbury v. Madison “state what the law is” moment in our Constitutional history. Invocation of the privilege as the result of simple Congressional oversight has not been fully fleshed out by the Supreme Court. The “Shadow Docket” of the Supreme Court has been overloaded with rulings and stays as historic issues are percolating their way to the Court. Whether this turns out to be a non-justiciable political question of “non-reviewable” pardons or is seen as core Presidential Executive Privilege remains to be seen. Coming soon to a theater near you.
Mike Imprevento
June 1st, 2025
