Election Law & Executive Privilege

Now that Trump’s claim of executive privilege regarding January 6 is at SCOTUS, should the election law community deliberate, and weigh in at all, about the relationship between an incumbent president’s claim of confidentiality with respect to official matters and the incumbent president’s simultaneously different role as a candidate for reelection?

From what I can (as one who doesn’t specialize in the law of executive privilege), some of the claims on behalf of Trump seem to be simply that if the President is in the White House talking to other White House officials, the communication must fall within the scope of executive privilege.

But this kind of claim seems way too broad to me. If hypothetically a President and the White House Chief of Staff discuss in the Oval Office how to hire a “hit man” to murder the President’s spouse, that communication would not seem to me to be within the scope of executive privilege, even though it occurs in the White House and between White House officials, because it obviously does not concern anything that comes remotely close to being within a President’s responsibilities under Article II of the Constitution.

The same point would seem to apply to campaign-related communications that do not remotely concern an incumbent President’s presidential responsibilities. So, for example, suppose the only recording of the conversation that Trump had with Raffensperger about finding enough votes for a Trump victory in Georgia was a White House recording of the conversation. I don’t see how that communication would fall within the scope of executive privilege even though Trump and White House Chief of Staff, Mark Meadows, were on that call. There was no Article II function of a president involved in that call; it was solely in Trump’s capacity as a candidate (and Meadows, as a government employee, should have to account for his involvement in a clearly campaign-related activity).

The same analytical distinction should apply to the activities of Trump and White House officials on January 6 and specifically concerning the joint session of Congress scheduled for that day. Insofar as any White House communications reasonably could be considered legitimate Article II activities concerning the use of the National Guard and protecting the physical security of the Capitol, so that Congress could conduct its Twelfth Amendment duties to count the electoral votes, that’s one thing: there’s at least a plausible claim that executive privilege covers those communication, and then the analysis would proceed to whether the privilege can be waived by Biden as the current president, or overcome by the need for Congress to understand what happened with respect to the insurrection, etc. But, conversely, insofar as the communications by Trump and other White House officials do not concern this kind of legitimate Article II function, but instead a candidate’s desire to prevail in the election, I don’t see how executive privilege applies at all.

Just because a candidate who wants to win happens to be an incumbent president doesn’t automatically make the communications of that candidate or his advisers within the scope of the executive privilege that Article II is designed to protect. I don’t think I’ve seen enough emphasis of this point, which would seem central to the pending case. Is it the role of election law scholars to endeavor to elevate its prominence as the Supreme Court conducts its deliberations in this important case?

Share this: