Trump is learning what executive privilege really means

Former President TrumpDonald TrumpBiden sends 2016 climate treaty to Senate for ratification US, China ease restrictions on journalists Americans keep spending MORE is desperate to keep White House documents out of the hands of the House Select Committee on the January 6 attack. His assertion of executive privilege, seeking to enjoin the National Archives and Records Administration [NARA] from complying with a congressional records request, was soundly denied by U.S. District Judge Tanya Chutkan, and the case has been set for an expedited hearing before the District of Columbia Court of Appeals on Nov. 30.

As Judge Chutkan observed in her extensive opinion, executive privilege exists for the benefit of the presidency, rather than for any individual president, much less former presidents. Trump is therefore almost certain to lose.

The Select Committee’s request for numerous Trump-era documents includes “written communications, calendar entries, videos, photographs, or other media relating to [Trump’s] January 6 speech, the January 6 rally and subsequent march, the violence at the Capitol, and the response within the White House.”

It was served on the NARA pursuant to the Presidential Records Act [PRA], which was passed by a large bipartisan majority in the wake of President Nixon’s resignation. The PRA recognizes the need to “encourage the free flow of ideas within the executive branch” by allowing presidents to shield certain documents from public exposure, even after they leave office. Even so, it includes an express exception for congressional requests for “the activities, deliberations, decisions, and policies” of the president.

Crucially, the PRA confers upon sitting presidents the power to object or agree to the production of records for Congress, both for themselves and their predecessors. In this case, President BidenJoe BidenIdaho state House passes worker vaccine compensation bill Biden sends 2016 climate treaty to Senate for ratification Rubio vows to slow-walk Biden’s China, Spain ambassador nominees MORE formally consented to the document production, thus overruling Trump’s assertion of executive privilege.

Trump’s only remaining recourse was to the courts – he filed suit on Oct. 18 – where the Biden administration has firmly restated its position that Congress’s need to investigate the Capitol insurrection “overcomes the confidentiality concerns” of former President Trump.

Executive privilege is not absolute, even for sitting presidents. As the U.S. Supreme Court held in a case involving former President Nixon, the privilege can be “overcome by an appropriate showing of public need by the judicial or legislative branch.” Previous presidents, including Ronald Reagan and George W. Bush, have voluntarily waived their own executive privilege, recognizing the importance of allowing Congress to pursue investigations in the public interest.

Trump’s lawyers object to Biden’s authority, however, arguing…