Executive Privilege

J. Bradley Klepper
Attorney at Law

I know that some of you may find this hard to believe but I am not a political junkie. I truly am not. In all honesty I would rather get poked in the eye with a sharp stick than be drug into a political argument. For the record, I am neither far right nor far left. I am something of a Goldilocks in that I like my politics somewhere in the middle. I mean who doesn’t like porridge that is “just right.”

With that being said, I try to never take a political stand in any of the articles that I write. Heaven forbid somebody actually looks to me, or anyone else, for direction on what position to take on a political matter. Instead, research the matter yourself and develop your own belief. Someone much wiser than me once said that an unexamined belief is a belief not worth having. I agree.

Now that we have established that I am not a political junkie let us talk about what I am. Quite simply, I am a legal junkie. By that, I mean that I like the law and the legal questions that are often presented.

And to be honest the squabbling between Congress, the present administration, and the past administration presents plenty of legal questions to fuel my habit.

In fact, one of the most recent questions to arise addresses executive privilege. Specifically, can a former President exert executive privilege to block the release of documents to the House committee investigating January 6th?

Now that may seem like a benign question but trust me it is not. Lots of history and things to discuss packed into that question. So let’s get started.

Unless you have been living under a rock you know that President Trump claimed executive privilege to block a request for presidential documents held by the National Archives and Records Administration. Of course, this is now working its way through the courts.

The first stop was at the U.S. District Court in D.C. where Judge Chutkan found that President Trump is “unlikely to succeed on the merits of his claims.” This opened the door for the release of the documents.

However, this matter was appealed and two days later a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit and the court issued a temporary stay (think of it like a “hold”) on Judge Chutkan’s order. Oral argument was heard on November 30th. However, we have not yet heard the court’s decision.

Now before we go much further let us take a look at executive privilege.
The modern doctrine of executive privileges dates back to a 1974 U.S. Supreme Court decision that forced President Nixon to turn over the tapes related to a little something called Watergate. I bet some of you remember that! In that decision the court said that “[a]bsent a claim of need to protect military, diplomatic or sensitive national security secrets, we find it difficult to accept the …[absolute] confidentially of presidential communications.”

President Nixon complied and then resigned a few weeks later. But later, as a FORMER president, he claimed that historical practice as well as an attorney general opinion that said that all official documents from the time in the White House were his personal property and announced his plan to destroy them.

Needless to say this did not sit well with Congress who then enacted the Presidential Recordings and Material Preservation Act of 1974 which placed his presidential records in federal custody to prevent their destruction. President Nixon did not like that at all and challenged the act on the ground that it violated the separation of powers.

Three years later the U.S. Supreme Court upheld the act in a 7-2 decision and found that no such violation existed. The decision also noted that the act was signed by President Ford (Nixon’s Vice President).

HOWEVER, the opinion did say that executive privilege “survives the individual president’s tenure” and that “a former President may also be heard to assert” these claims. However, the Court placed several caveats on this privilege and noted that executive privilege does not apply when there is a compelling reason for the information, such as in a criminal investigation.

The following year, Congress tightened control of a former president’s papers through the Presidential Records Act of 1978 (“PRA”). Under the PRA, ownership of the official records of the president were transferred to the federal government. The PRA also established statutory rules for the management of these documents.

Of course, sitting presidents can issue regulations under executive orders to assist with the implementation of the law. In fact, President Bush issued an executive order giving a FORMER president the ability to assert such privilege without the consent of the sitting president. However, an executive order by President Obama shifted the decision on executive privilege back to the SITTING president. As president, Trump could have issued his own order to reverse President Obama’s regulations but he chose not to do so. A decision I am sure he regrets.

So at the end of the day, the courts are going to have the final say on whether President Trump can assert executive privilege in this situation. Based on the oral arguments heard on November 30th I am going to go out on a limb and say that the court will likely rule against President Trump in this matter. Of course, it is likely that the matter will then go to the U.S. Supreme Court to decide what obviously be a far-reaching decision on executive privilege.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

800-333-DRIVE (3748) or www.interstatetrucker.com and www.driverslegalplan.com