“Aftermath Records”: Former Presidents’ Confidentiality Interests Over White House Records

Daniel Epstein

On December 9, 2021, the D.C. Circuit affirmed the District of Columbia District Court’s ruling that the National Archives and Records Administration (“Archives”) could produce former President Donald Trump’s White House records to the House Select Committee to Investigate the January 6, 2021, attack on the U.S. Capitol (“January 6 Committee”). On December 23, 2021, the former President asked the Supreme Court to intervene to prevent the January 6 Committee from accessing his White House records, filing both a petition for certiorari as well as an application for the Supreme Court to stay the D.C. Circuit’s mandate pending its disposition on the certiorari petition. On January 19, 2022, the Supreme Court denied former President Trump’s request for a stay.

The dispute before the Supreme Court arose from the January 6 Committee’s request to the Archives for Trump’s White House records and the subsequent back and forth between the Archives, the White House, and the former President concerning the scope of executive privilege. The litigation obviously raises complex constitutional separation of powers questions. As I argue here, the federal courts can resolve these disputes without having to fully resolve thorny constitutional issues. Given this, perhaps Trump v. Thompson is best analyzed in terms of what was not in dispute: that the Presidential Records Act of 1978 governs questions of congressional access to a former president’s records. The Presidential Record Act’s congressional access provisions do not overcome the constitutional principles of separation of powers. Constitutional principles trump statutory ones: A former President’s constitutional privilege claims can never be overcome by a statutory process. The former President’s failure to make this point that, when it comes to his executive privilege claim, the Presidential Records Act is irrelevant, is why the Supreme Court ultimately found an easy out from merits-based review and affirmance of the D.C. Circuit’s opinion. Instead, the January 6 Committee, the executive branch respondents, and former President Trump asked the Supreme Court to interpret the Presidential Records Act in a way that not only delineated which procedures govern questions of congressional access and executive privilege but also ascertained who has the final say over the enforcement of such procedures.

The Presidential Records Act cannot overcome an Article II right. In this essay, I argue that the Presidential Records Act establishes no process for resolving interbranch conflicts nor could it. Instead, the Presidential Records Act’s procedures concerning executive privilege claims by former presidents relate only to the Act’s public disclosure provisions, which mirror the Freedom of Information Act. When it comes to disclosure to Congress, the issue in cases like Trump v. Thompson is whether questions of executive privilege must be addressed by constitutional first principles. The Presidential Records Act has nothing to say on the matter.