On January 6, 2021, a violent mob attacked the U.S. Capitol after being told by then-President Donald Trump that the election had been “rigged” against him and that he had actually won “by a landslide.”1Brian Naylor, Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial, NPR (Feb 10, 2021), https://perma.cc/37EA-CMPT. The mob rampaged through the Capitol building, leaving several dead, injuring over a hundred people, and causing millions of dollars of property damage.2Trump v. Thompson, 20 F.4th 10, 15 (D.C. Cir. 2021).The House of Representatives Select Committee to Investigate the January 6th Attack on the United States Capitol (“January 6 Committee”) now seeks information about the events preceding that violent day.
How much information the Biden administration may disclose and how much the January 6 Committee may obtain turns on how courts treat “executive privilege” claims. In the Nixon years, the Supreme Court articulated executive privilege as shielding presidential communications from disclosure so that presidents may obtain frank advice from subordinates.3United States v. Nixon, 418 U.S. 683, 708 (1974) (“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.”). Former President Trump has made unsuccessful and expansive “executive privilege” assertions in a failed attempt to shield communications from the January 6 Committee. He drew self-serving support from former presidential advisers John Eastman and John Yoo, who argued against allowing a sitting president to waive executive privilege for statements made in a prior administration.4John Eastman & John Yoo, Eastman and Yoo: Dems’ Unrelenting Drive Against Trump Continues to Do Real Harm to Presidency, Constitution, Fox News (Aug. 6, 2021), https://perma.cc/R5UK-5W7M.Over Trump’s objection, President Joe Biden has waived privilege for certain documents sought by the January 6 Committee, as well as the White House’s visitor logs.5Michael S. Schmidt, Biden Rejects Trump’s Claim of Privilege for White House Visitor Log, N.Y. Times, Feb. 16, 2022, https://perma.cc/X8AD-ZSGU.
This dispute turns on executive privilege’s scope. Is it a privilege held by the executive branch, or by the individuals who serve as president of the United States? Thus far, the courts have correctly concluded that executive privilege belongs to the office and not to an individual who once occupied it.6See Trump v. Thompson, 20 F.4th at 26 (explaining that “executive privilege is just that—a privilege held by the Executive Branch”). Still, Trump, Eastman, and Yoo’s argument might linger, as shown by Justice Brett Kavanaugh announcing his sympathy for their view. When the Supreme Court rejected Trump’s effort to withhold documents sought by the January 6 Committee, Justice Kavanaugh issued a statement contending that former presidents should be able to assert executive privilege even over the objection of a sitting president.7Trump v. Thompson, 142 S. Ct. 680 (2022) (Kavanaugh, J., Statement) (“A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim.”).
But embracing this view risks undermining sitting presidents. It would both shield advisers from exposure in perpetuity and also work to limit what future presidents can see, say, or share. Parallels from the corporate-law context demonstrate the governance problems this dynamic would create.
The president of the United States occupies an organizational role similar to a corporation’s CEO. In the corporate setting, attorney-client privilege belongs to the corporation itself. To prevent confusion, corporate lawyers regularly provide the “Upjohn” warning to company executives and other employees before interviewing them about events surrounding potential legal issues.8Upjohn Co. v. United States, 449 U.S. 383 (1981). This warning explains that the privilege protecting attorney‑client conversations belongs to the company and that the company may waive it at its sole discretion.
Sometimes, corporate and executive interests diverge. A corporation’s lawyers must avoid advising corporate executives about their personal interests lest they become entangled with messy conflicting duties to their corporate and executive clients.9See W. Bradley Wendel, Government Lawyers in the Trump Administration, 69 Hastings L.J. 275, 301 (2017) (“Some of the biggest messes in the regulation of lawyers arise in the context of the representation of organizational clients, where lines of authority are unclear and the usual lawyer-over-client hierarchy of control is destabilized”). Competent lawyers instruct corporate executives to seek their own counsel when they know the interests of the organization and the executive diverge.10See Model Rules of Pro. Conduct r. 1.13(f) (Am. Bar Ass’n, Discussion Draft 1983). (“In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing”).
In practice, executives may sometimes shelter behind corporate privilege. Imagine a CEO who tells the company’s lawyer that she lied about the corporation’s performance and now needs advice on how the company should deal with investor lawsuits and government investigations. That conversation would be privileged. In the short term, the CEO benefits from the company’s silence. If the company’s board fires the CEO, the ousted CEO’s conversations with corporate counsel would remain privileged. But ultimately the privilege belongs to the corporation. A new CEO may decide to waive it, and courts would reject attempts by the former CEO to overrule that decision.
Waiving attorney-client privilege can often be in a corporation’s best interests. When companies get into criminal or regulatory trouble, waiving privilege might be part of their efforts to settle their own liability, including by giving the government evidence that can be used against culpable individuals.11Cf. U.S. Dep’t of Just., Just. Manual § 9-28.710 (2008) (“[Privilege] waivers occur routinely when corporations are victimized by their employees or others, conduct an internal investigation, and then disclose the details of the investigation to law enforcement officials in an effort to seek prosecution of the offenders.”). In our example, the company will seek to mitigate the damage the former CEO caused by telling lies about the company’s performance. In other words, it’s in the corporation’s own interest to stop protecting the former CEO and to share with prosecutors what she admitted to corporate counsel.
Here, it is worth considering what would happen if ousted corporate executives could block new management from using the company’s information to clear the company’s name. Giving a former CEO some ability to block the sharing of corporate information would take control of the company’s own information away from the company. It would also mean that corporate lawyers would owe duties both to their organizational clients and to the corporation’s executives. This would create an untenable professional dilemma given potential conflicts between the two. That cannot be the law, and fortunately it is not. To avoid these problems, corporate executives seeking legal advice about their personal problems often retain their own lawyers. In many instances, corporations will even pay for executives to have personal counsel. President Trump undoubtedly understood this dynamic as he retained multiple lawyers to represent him in his personal capacity during his presidency.12See, e.g., Caroline Ktchener et al., All the President’s Lawyers, Atlantic (May 7, 2018), https://perma.cc/46SN-ACQ9.
Similar to the corporate context, a former president who told lies about and fomented insurrection over his election performance should not be allowed to assert privilege over government information that sheds light on his conduct. To govern effectively, the sitting president must be able to access and use the government’s information. Allowing a former executive to veto the current executive’s decision that the National Archives should provide information to Congress would allow past presidents to continue controlling the government. If a former president can obstruct President Biden’s decision to authorize the release of information, what other limits might a former president’s assertions of privilege place on a current administration? Could a former president interfere in what a future president may say in a State of the Union, when conducting foreign policy, or in any other arena? Surely not.
To be sure, holding the nuclear football differs from running a corporation and executive privilege differs from attorney-client privilege. Yet similar rationales justify these privileges. Both exist to ensure leaders have access to candid advice and information. Yet privileges have limits. Attorney-client privilege in the corporate context balances these concerns and encourages good-faith behavior. Executive privilege should be treated the same way. When corporate executives know that they cannot forever bury wrongdoing behind the company’s privilege, they will be less likely to try to use the corporation’s lawyers for improper ends.
Executives who seek counsel to serve the company’s best interests and ensure legal compliance have little to fear. Executives who want help dodging responsibility for personal misconduct should hire their own lawyers. Similarly, former President Trump should not be able to control government information or assert privilege notwithstanding President Biden’s decision to waive it. After all, President Biden, the federal government’s new CEO, has determined that it is in the nation’s best interests for the January 6 Committee to fully investigate the former president’s lies about the 2020 election and his failed effort to prevent the transfer of power.