Does a president have the right to withhold privileged documents from the National Archives?

Former President Donald Trump’s lawyers say executive privilege should protect the archives seized this month from his Florida residence and earlier this year by the FBI, as the legal battle over who will control Trump’s presidential records continues.

Trump’s lawyers, who have requested that a “special master” review documents seized in the Aug. 8 search, argued in a filing Monday that documents from Trump’s presidency are “presumptively privileged.” Trump has tried to shield these and other records from the FBI. ONE May letter from the acting US archivist to Trump’s lawyers released on Tuesday show that Trump’s team tried to assert a “protective assertion of executive privilege” so that the National Archives and Records Administration (NARA) would not hand over the FBI records he had voluntarily returned earlier this year.

The FBI search of Trump’s Mar-a-Lago residence, which was uncovered 11 sets of graded documentsstemmed from Trump’s failure to provide those documents to the Archives when he left office or at any time since NARA demanded them.

Not only does the former president want to prevent investigators from seeing the documents he originally returned to the archives, but he also wants “privileged” documents back in his custody.

“[T]The FBI, in its now famous raid of Mar-a-Lago, took boxes of privileged ‘attorney-client’ material, and also ‘executive’ privileged material, which they deliberately should not have taken,” he said in a post on Truth Social .” In copy of this TRUTH, I respectfully request that these documents be immediately returned to the place from which they were obtained. Thank you!”

But does Trump or any president have the right to withhold material protected by executive privilege from the National Archives — or keep it?

What is executive privilege?

Executive privilege is a constitutional doctrine based on separation of powers. Under this doctrine, the president has the right to shield his deliberations with congressional aides and the Justice Department in some cases.

But legal experts say Trump’s lawyers will have a hard time arguing that the president’s records should be withheld from the National Archives or the FBI based on executive privilege.

Limitations on Executive Privileges

Executive privileges are rooted in the division of powers between the executive, legislative and judicial branches. NARA is part of the executive branch, as is the FBI. A former president may try to assert executive privilege to maintain the privacy of certain records, but these claims may be overridden by the current president. That’s what happened when Trump tried to block the January 6 select committee from getting access to the archives. The Biden White House refused to block it, and the Supreme Court ruled that Trump could not stop it.

In the 1977 case Nixon v. GSA, the Supreme Court ruled that a former president cannot successfully assert executive privilege “against the very executive branch in whose name the privilege is invoked,” as the National Archives explained in its May 2022 letter to Trump’s attorney. , which became public this week. In Nixon v. GSA, Nixon challenged a new law on presidential recordings and materials, passed because of Watergate, as a violation of the separation of powers and his own privacy rights. Nixon lost that case.

An earlier case, United States v. Nixon, held that executive privilege is not absolute, and does not protect a president from turning over documents in a criminal prosecution. The special counsel in charge of the case wanted Nixon’s recorded discussions with his aides. The Supreme Court ruled that Nixon’s concerns were outweighed by the needs of the investigation.

In her May 10 letter to Trump’s lawyer, Acting Archivist Debra Wall said the FBI clearly had the right to review material Trump had kept at Mar-a-Lago, to determine whether any harm to national security had been done by storing government secrets in a private place. club in Palm Beach.

“The issue in this case is not moot,” Wall wrote to Trump attorney Evan Corcoran. “The executive branch here is seeking access to records that belong to, and are in the custody of, the federal government itself.”

Wall said she had reached her decision after consulting with the Justice Department and the Biden White House counsel’s office, and the courts will now decide whether her argument wins.

The Biden White House may agree that some records in the boxes contain material that should be withheld from the public — even if they are not classified — if they contain what a key order calls the “deliberative process of the executive branch.” But that decision would be left to the sitting president, and even if Mr. Biden were to agree to keep the records out of the public eye, that would not mean Trump would have the records in his personal possession.

What the Presidential Records Act says about privileged material

Nixon’s transgressions during Watergate created The Presidential Records Act (PRA), a law that shifted the legal ownership of official records of a president from private to public. The president’s records are not “private,” said Jason R. Baron, former director of litigation at NARA. They belong to the American people. But there are restrictions on public access to presidential records that contain personal or privileged information, he added.

The PRA allows the public to access presidential records through the Freedom of Information Act five years after the end of an administration, although a president can invoke restrictions that prohibit public access for some records for up to a dozen years. Early in his presidency, Trump told NARA that he would ask for the 12-year limit. However, the Trump Presidential Library website says the records of his administration will be subject to Freedom of Information Act requests in 2026, five years after the end of his presidency.

Although the law provides for a five-year inaccessibility period, there are exceptions that may apply. The archives ruled that the exception applied in Trump’s case and that the files could be released to the FBI and the Justice Department. This is spelled out in Wall’s May letter, which says that while the PRA “generally restricts access” to presidential documents in the archives’ custody for “several years” after a president leaves office, according to statute, “subject to some rights, defense, or privileges which the United States or any agency or person may claim, such records shall be made available to a sitting President if such records contain information necessary to carry out the current business of the office of the sitting President and which is not otherwise available. .”

The law distinguishes between personal records such as correspondence with a child or a birthday card, which a former president can keep, and presidential records, which have to do with governance and must be kept at the National Archives.

“Presidential records are records in the White House relating to constitutional, statutory or other official or ceremonial duties of the president,” Baron said. “Personal records such as diaries, journals, or other personal notes not prepared or used or communicated for government business are excluded from the definition of what constitutes a presidential record.”

It is possible that some of the material Trump had in the seized boxes is personal. The Presidential Records Act requires the president and his staff to take every step they can to file personal and presidential records separately. In the Trump administration, personal and presidential records may have been mixed up. The archive has already determined that Trump’s handling of records did not meet standards, noting in a statement that the former president had attempted to destroy documents, that “Trump administration officials recovered and taped together some of the torn plates.

Under the Presidential Records Act, the outgoing president is responsible by law for providing all of his official records to the National Archives prior to leaving office.

“The PRA establishes an arrangement that states that at noon on Inauguration Day or when a president has left office, presidential records are immediately subject to the legal custody of the National Archives and Records Administration,” Baron said. “A former president has no right to hold presidential posts residing elsewhere outside of NARA’s legal custody.”

So, whether the records are privileged or not, if they are records of the presidency, they should be held in the custody of the National Archives, not in Mar-a-Lago. Personal records are the only ones that the president can keep after he leaves office.

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