Biden vs. Trump: Who Has the Last Word on Presidential Records?

On Nov. 9, a federal district judge rejected former President Trump’s request to enjoin the National Archives and Records Administration (NARA) from releasing his presidential records to the House Select Committee to Investigate the January 6th Attack on the Capitol. Judge Tanya Chutkan’s analysis relied heavily on the fact that President Biden had determined not to uphold Trump’s claim of executive privilege and had instructed NARA to release records requested by the committee because withholding such records “is not in the best interests of the United States.” The court explained that Biden was not constitutionally obligated to honor Trump’s assertion of executive privilege and it would be inappropriate for the court “to intrude upon the executive function” by second guessing Biden’s determination of executive branch interests in the matter.

Chutkan’s opinion implies that Biden’s decision on executive privilege is dispositive of that issue, but she also goes on to address (and reject) Trump’s claim that the committee’s investigation and document requests lack a legitimate legislative purpose and are therefore invalid. In contrast to the discussion of executive privilege, the court here undertakes an independent analysis of the reasons for the committee’s investigation and the legitimate legislative need for the records requested (although Biden’s determination is cited as additional support for the court’s conclusion in the committee’s favor).

The court’s opinion raises several issues that may be presented on appeal. Does the incumbent president’s decision on executive privilege always trump (so to speak) that of the former president and, if so, does the court have any role in reviewing a disagreement between the incumbent and former presidents on that issue? If the former president has no valid claim of executive privilege, does he still have the right to challenge a congressional committee’s request for presidential records based on its alleged lack of legitimate legislative purpose? If he does, should the committee’s legislative purpose be scrutinized under the exacting criteria established by the Supreme Court in the 2020 Trump v. Mazars case or under some more deferential standard?

For the reasons explained below, I believe Chutkan was correct to treat the incumbent president’s decision on executive privilege as dispositive here, rather than relying on the balancing approach suggested by the parties. She was also correct not to reach this conclusion in the manner proposed by an amicus brief submitted on behalf of a group of nonprofit transparency organizations and scholars. This brief argued that the court need not engage in balancing the interests of the legislative and executive branches because (a) the Presidential Records Act (PRA), as amended in 2014, forecloses the ability of a former president to assert executive privilege without the incumbent’s support and (b) Biden’s rejection of Trump’s executive privilege claim, in any event, constituted a waiver of the privilege. These arguments would mean that the incumbent president would always have the final word on a former president’s invocation of executive privilege. In my view, these arguments sweep too broadly and are unlikely to persuade those who take a more expansive view of a former president’s constitutional rights in his presidential records (a group that likely includes at least several members of the Supreme Court). Instead, a narrower and stronger argument would focus on the fact that Biden here was executing a constitutional responsibility of the executive, not merely expressing a view on a legal or policy issue.

The court was also wise to address the question of the committee’s legislative purpose, even though it had already ruled on the executive privilege issue. This is true not only as an alternative holding (that is, in the event the appellate court disagrees with Chutkan on executive privilege) but also because there is a plausible argument that Trump could challenge the committee’s authority to request the records even in the absence of a viable executive privilege claim. If so, however, judicial review of the committee’s authority should be extremely deferential. 

Finally, I flag here a threshold jurisdictional issue not raised by the parties, amici or the court, namely, whether a former president has standing to bring suit in federal court to vindicate a claim of privilege in the first place. Although the weight of authority supports Trump’s standing here, the Justice Department’s long-standing position on congressional standing would seem to call for a different result.

To understand the basis of my views, a short (well, shortish) history of the PRA is useful. That history shows that while Congress has been unremittingly hostile to assertions of executive privilege by former presidents, some in the executive branch have been much more favorable to such assertions in general. Here, however, even that more expansive view should not lead to a decision in Trump’s favor. 

The Presidential Records Act

Until the Nixon administration, presidential records (which may be roughly defined as documents and similar materials created or received by presidents and their immediate advisers and assistants in the course of conducting activities related to their presidencies) were considered to be the president’s personal property to be disposed of as he saw fit. (To those who find this legal regime odd, it should be noted that it remains to this day the one governing the personal office records of members of Congress.)

In the aftermath of President Nixon’s resignation over Watergate, Congress wanted to ensure that his presidential records were taken into “protective custody” to prevent him from destroying tapes and other significant materials related to the scandal. On Dec. 19, 1974, Congress passed the Presidential Recordings and Materials Preservation Act (PRMPA), which asserted public control of Nixon’s presidential records and mandated that government archivists screen these records for purposes of allowing eventual public access. 

Nixon challenged the constitutionality of the PRMPA, but the Supreme Court rejected his facial attack on the law. The court found that any incidental intrusion into the operation of the executive branch or burden placed upon the exercise of executive privilege by the law was outweighed by the substantial public interest in maintaining access to Nixon’s records, including Congress’s “desire to restore public confidence in our political processes by preserving the materials as a source for facilitating a full airing of the events leading to [Nixon’s] resignation, and Congress’s need to understand how those political processes had in fact operated in order to gauge the necessity for remedial legislation.” 

The court also addressed the issue of whether a former president could assert executive privilege at all. It concluded that he could, but it stressed that the authority of a former president to invoke the privilege was much more limited than that of an incumbent and was further “subject to erosion over time after an administration leaves office.” Because the PRMPA preserved Nixon’s right to assert executive privilege as to specific documents prior to their release, the court found no merit to the suggestion that the law on its face violated the former president’s constitutional rights. 

In 1978, Congress enacted the PRA, which applied the public custody and control principle of the PRMPA to presidential records generally. The PRA states that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records.” It establishes a complex system for processing presidential records and assigns to the archivist of the United States (and NARA, which the archivist oversees) independent legal responsibility for custody, preservation and access control of these records. 

The PRA also addresses the constitutional concerns discussed by the Supreme Court in Nixon v. GSA. Specifically, it “mandates that NARA cannot disclose any presidential record without first providing notice to both the former and incumbent presidents, through their designated representatives, so that they both have the opportunity to review the records in order to decide whether to assert a constitutionally based privilege.” 

Meanwhile, the PRMPA continued to generate legal controversy. In 1985, the archivist issued regulations under the PRMPA that required NARA to give notice to interested persons, including the former president, prior to publicly disclosing any of Nixon’s records. Although the regulations indicated that the archivist would independently decide whether to honor any claim of executive privilege by the former president, the Office of Legal Counsel (OLC) opined that these regulations should be “interpreted” to require the archivist to acquiesce in any claim of privilege made by the former president and to withhold the documents at issue unless a court ordered disclosure. OLC also opined that, except in extraordinary circumstances, an incumbent president should respect a former president’s assertion of executive privilege even if the incumbent believes the assertion to be unwise and/or legally without merit.

OLC’s memorandum provoked a bipartisan backlash in Congress, where a hearing was convened to scrutinize the opinion. Republican Sen. Charles Mathias and Democratic Sen. Thomas Eagleton, for example, submitted a lengthy joint statement in which they charged that OLC was “misinformed” as to congressional intent, which was to ensure presidential records be in the control of an independent archivist “insulated from political motivations,” and “overreaching in its claim that executive privilege claims by former Presidents are not subject to scrutiny.” 

Assistant Attorney General Charles J. Cooper, the author of the OLC opinion, accompanied by his deputy, Samuel Alito, appeared at the hearing to defend OLC’s position, but Cooper had little luck in convincing a skeptical House committee. Subcommittee chair Glenn English summed up his reaction to Cooper’s testimony by noting, “From what I’ve heard so far it’s quite clear to me that [the] Office of Legal Counsel’s opinion is certainly a product of a flawed process, to say the least; it’s legally deficient; and, it certainly espouses a policy that is of questionable wisdom.” English wanted to know if OLC had communicated with anyone at the White House about this; Cooper identified one person—a young White House lawyer named John Roberts. 

A Republican member of the committee, Rep. Thomas Kindness, interrogated Cooper on his theory that the incumbent president should respect his predecessor’s assertion of executive privilege (emphasis added):

Kindness: Regardless of whether the incumbent President is bound by the law and opinion of the Department of Justice, Office of Legal Counsel, or by regulations, is it your opinion that an incumbent President can stand in the way of an assertion of executive privilege by a former President?

Cooper: Under certain circumstances, yes, sir.

Kindness: Let us say if it has to do with an ongoing business of the Government?

Cooper: Yes, sir. I think—it is my conclusion, anyway, and it is reflected in the opinion that you have, that a President need not respect—an incumbent President need not respect a former President’s claim of privilege if the incumbent feels that it would interfere with his ability to execute his legal and constitutional responsibilities as he, alone, understands them and perceives them.

Not long after this hearing, OLC’s opinion was challenged in a lawsuit brought by public interest organizations seeking the release of the Nixon papers. The plaintiffs argued that OLC’s memorandum was contrary to the PRMPA and erroneous in its conclusion that the archivist’s deference to the former president’s assertion of executive privilege is constitutionally compelled. The district court ruled in favor of the plaintiffs and the government, represented as lead counsel by Alito (who by then was the U.S. attorney for the District of New Jersey), appealed.

In 1988, the U.S. Court of Appeals for the D.C. Circuit affirmed in Public Citizen v. Burke. It began its analysis by determining OLC’s conclusion was not entitled to deference because it was not based on an interpretation of the PRMPA but was “driven entirely by its constitutional reasoning.” This reasoning was flawed in that it improperly conflated the archivist’s relationship to the former president with his relationship to the incumbent. Only the incumbent president was the archivist’s constitutional superior with the power to direct him in the exercise of his duties. Moreover, the court saw no reason why the archivist “is himself constitutionally compelled to afford any more deference to Mr. Nixon’s claim than would be the incumbent President.” It remarked acidly that “OLC’s discomfort with the role that the Archivist would play under the regulations as written suggests more notions of lese majeste than unconstitutionality.” Therefore, the court upheld the archivist’s regulations as written but without OLC’s interpretive gloss.

Immediately before leaving office, President Reagan issued an executive order governing the procedures for accessing presidential records. Although the order pertained to the PRA, it incorporated the principle recognized by the D.C. Circuit in Burke. Specifically, the Reagan executive order provided that if the archivist received a claim of executive privilege from a former president (but not from the incumbent president), “the Archivist shall[, after appropriate consultations, determine] whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.”

The Reagan executive order was directed primarily at public access to presidential records; however, it also refers to the NARA regulations governing official access to presidential records (such as congressional requests for presidential records). It, therefore, appears the procedures established by the executive order were intended to apply to such official access as well.

Twelve years later, the George W. Bush administration decided that the Reagan executive order was inadequate, and President Bush issued a new executive order to replace it. Two of the most important differences between the executive orders were that under the Bush executive order the incumbent president was to concur in the privilege decision of the former president except in “compelling circumstances” and, if the former president asserted privilege and the incumbent did not concur, the archivist was still not permitted to allow access to the disputed records unless so ordered by a “final and nonappealable court order.” The Bush executive order therefore adopted a key element of the 1986 OLC opinion by establishing a strong presumption in favor of a former president’s assertion of executive privilege.

Unlike the Reagan order, moreover, the Bush executive order expressly and separately addressed the rights of Congress and the courts to obtain access to presidential records pursuant to the PRA. Section 6 of the Bush executive order provided that in the case of “requests” by courts or Congress for presidential records, the archivist shall provide the requested records to the former and incumbent presidents for review but “shall not permit access to the records unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.”

Like the 1986 OLC opinion (but more so), the Bush executive order touched off a bipartisan congressional firestorm, particularly in the House, where the Government Reform Committee (chaired by Rep. Dan Burton) and its subcommittee on government efficiency (chaired by Rep. Stephen Horn) led the opposition. Witnesses criticized as “flatly unconstitutional” the Bush executive order’s requirement that the archivist follow the former president’s direction to withhold records even when both the archivist and the incumbent president believe the direction to be legally groundless. Members of the committee likewise complained about the order. Rep. Doug Ose, for example, noted “the new order appears to violate not only the spirit but also the letter of the Presidential Records Act,” where “Congress very clearly expressed its intent to make Presidential records available for congressional investigations and then for the public after a 12-year period.” 

Despite intense pressure from Congress, including legislation to revoke the Bush executive order, which was approved by the Government Reform Committee, the Bush administration steadfastly defended the order and refused to make any changes. The defense of the order fell primarily to a White House lawyer named Brett Kavanaugh, whose colleagues jokingly referred to as “Mr. Presidential Records.” During his 2004 confirmation hearing for the D.C. Circuit, Kavanaugh acknowledged his role in drafting and defending the Bush executive order. Kavanaugh recalled periodic meetings with historians and members of Congress in which he attempted to allay their concerns about the executive order. 

These efforts may not have been as successful as Kavanaugh seemed to believe. In early 2007, the House passed a bill to negate the Bush executive order (the Presidential Records Act Amendments of 2007) by a vote of 333-93, though the bill died in the Senate. Nonetheless, the Bush executive order was revoked by President Obama on his first full day in office; he replaced it with Executive Order 13489, which essentially restored the language of the Reagan executive order.

This was not enough for Congress, though. In the 113th Congress, Rep. Elijah Cummings introduced a bill, H.R.1233, which mostly sought to codify the Reagan-Obama procedures. The Senate report explained why this was deemed necessary:

It has become evident to Congress that the PRA is not sufficiently clear with respect to its disclosure mandates. Without further Congressional action each successive President likely will issue his or her own executive order interpreting the original PRA. This would make the public’s access to Presidential records contingent upon the will of the executive—the avoidance of which was the goal of the original PRA.

In at least one respect the bill modified the Reagan-Obama procedures. While the executive orders left it to the archivist’s discretion whether to honor a former president’s executive privilege objection to the public disclosure of his records, H.R.1233 required the archivist to release the records in question, absent a court order to the contrary, unless the incumbent president expressly upholds the claim of executive privilege. If the incumbent decides not to uphold the claim, or simply fails to make a decision within the statutory period provided (90 days), the archivist is left without discretion to withhold the records. The Senate report explains that this approach, which requires the former president to carry the burden of sustaining the claim of privilege in court, “reflects the Supreme Court’s assessment that although former Presidents may retain some level of privilege over their documents after vacating the White House, such a claim ‘carries much less weight than a claim asserted by the incumbent.’” 

This aspect of H.R.1233 applied only to public access to presidential records; the law did not establish any procedures for official access to presidential records by Congress or the courts (what NARA calls “special access requests”). The legislative history does not indicate whether this omission was intentional or not.

In any event, H.R.1233 (which passed both houses without a dissenting vote) was enacted into law in 2014 as the Presidential and Federal Records Act Amendments of 2014. No change was made to Executive Order 13489 as a result of these amendments; the executive order remains in effect as it was initially promulgated by President Obama in 2009. In December 2016, however, NARA proposed regulatory changes to reflect the 2014 amendments. Even though it recognized that the new law did not codify procedures for special access requests, NARA proposed that such requests would be governed by similar procedures as the law required for public access. Specifically, once a former president asserted a claim of privilege with respect to a special access request, the incumbent president would have 30 days to decide whether to uphold the claim. If the incumbent failed to uphold the claim of privilege or simply failed to decide within the 30-day period, the archivist would disclose the presidential records 60 days after the claim was made, absent an intervening court order. 

NARA received no comments on its proposed regulations, which went into effect in June 2017. 

Analysis

The above history offers guidelines for the relative authority of the incumbent and former presidents with respect to the assertion of executive privilege in connection with Trump’s presidential records. 

Does the process established by the PRA determine the outcome of the lawsuit?

The amici argue that the 2014 amendments to the PRA “permanently and unequivocally give the incumbent President the final say” with respect to any claim of executive privilege by the former president. There are, however, several problems with this argument. The most obvious is that the 2014 amendments, as discussed above, do not apply here. The amendments apply to issues of public access, not to a special access request such as that made by the Jan. 6 committee. Thus, one would have to argue that the matter is settled, if at all, by the NARA regulations, not by the statute itself.

Second, it is not clear whether the NARA regulations in fact supplant the 2009 Obama executive order with respect to the procedures governing special access requests. The House brief asserts that it does, but its assertion notably lacks supporting authority or reasoning. NARA appears to sidestep the question entirely. The extent to which a regulation can supersede an executive order on the question of a former president’s authority to raise executive privilege would seem to raise a host of complicated questions; it is doubtful a court would want to go down this rabbit hole unless it were absolutely necessary.

In any event, even if the privilege review procedures established by the 2014 amendments applied, either directly or through the regulations, it is far from obvious that they give the incumbent president the final say with respect to issues of executive privilege. The PRA provides that “[n]othing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.”

In addition, while the privilege review procedures give the incumbent president primacy with respect to the archivist’s decision whether to release records subject to a former president’s claim of privilege, they also recognize the former president’s right to challenge the decision in court and the court’s authority to block the release of the records in some cases. 

All this being said, the legislative history described above suggests Congress’s skepticism if not outright hostility toward assertions of executive privilege by a former president. To the extent that Congress may reduce the former president’s privilege to a constitutional minimum, it is reasonable to read its legislative actions as consistent with that goal.

Do President Biden’s directives to the archivist regarding particular Trump records constitute a waiver of executive privilege or otherwise preclude judicial review of the privilege issue?

Here it is important to understand that Biden did not merely fail to uphold Trump’s claim of privilege. Biden determined, with respect to specific documents identified by NARA as responsive to the Jan. 6 committee’s requests, that the committee had a “compelling need” for the documents because they “shed light on events within the White House on and about January 6 and bear on the Select Committee’s need to understand the facts underlying the most serious attack on the operations of the Federal Government since the Civil War.” He, therefore, concluded that “an assertion of executive privilege is not in the best interest of the United States” with respect to the records at issue. 

Amici argue that Biden’s statements amount to a waiver of executive privilege and therefore preclude the court from any further review of the privilege claim. They further argue that this conclusion is not inconsistent with Nixon v. GSA because the “question of waiver was not before the [] Court, and so its opinion should not be read to counsel otherwise.” 

This argument is plausible, and amici are correct that Nixon v. GSA did not address the question of whether the incumbent president could waive the privilege. Nonetheless, there is at least some tension between recognizing an unfettered power of waiver in the incumbent president and the Nixon v. GSA Supreme Court’s acceptance of the view that the former president (separate and apart from the incumbent) enjoyed a continuing right to assert executive privilege beyond his term in office. Furthermore, in this case Biden did not purport to waive the privilege, and in oral argument NARA’s counsel disputed that this was the correct characterization of his actions. Finally, this argument may be particularly hard to sell to members of the current Supreme Court who may be inclined by their prior executive branch experience to take a broad view of the former president’s rights under Nixon v. GSA.

A narrower but stronger argument can be made for the proposition that Biden’s actions here are dispositive of the executive privilege issues with respect to the documents on which he has made his determination thus far (these documents are less than a thousand pages, likely a tiny fraction of the total amount of records that will ultimately be responsive to the Jan. 6 committee’s requests). A good starting point is to recall Cooper’s colloquy with Kindness some 35 years ago. While Cooper believed that the incumbent president should ordinarily defer to the former president’s invocation of executive privilege, he recognized an exception for situations where the records at issue are relevant to “an ongoing business of the Government” and the incumbent “feels [the privilege claim] would interfere with his ability to execute his legal and constitutional responsibilities as he, alone, understands them and perceives them.”

This exception is entirely consistent with the executive’s historical understanding of its authority to withhold records from Congress, which it dates to the very first congressional oversight investigation in 1792. In that case, the House established an investigating committee regarding Gen. Arthur St. Clair’s failed military expedition against Indian tribes in Ohio, and the committee then wrote to the secretary of war requesting that he turn over all relevant documents relating to the expedition. 

President Washington recognized that the executive branch’s response to this request would set an important precedent and assembled his cabinet to decide how to respond. Thomas Jefferson’s notes of the meeting record the cabinet’s consensus:

[F]irst, that the House was an inquest and therefore might institute inquiries. Second, that they might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would endanger the public: consequently were to exercise a discretion. Fourth, that neither the committee nor House had a right to call on the Head of a Department, who and whose papers were under the President alone, but that the committee should instruct their chairman to move the House to address the President.

One might interpret this decision as simply meaning “the House can ask us for whatever it wants and we will give it whatever we think it ought to have.” However, the cabinet recognized that the House was an “inquest,” which might “call for papers generally.” This suggests that the House’s call for papers imposes an obligation on those from whom it seeks such papers, just as a subpoena or other formal process from a court or investigating body would. Indeed, more than a century later the Supreme Court would recognize the House’s action in establishing the St. Clair committee and granting it investigatory power as key evidence that each house enjoyed a constitutional power to compel the production of information. 

A better interpretation, then, would be that Washington and his cabinet recognized the House’s authority to demand papers and the consequent obligation to produce them as a general matter. However, they also maintained that “the Executive” (i.e., the president) was also obligated not to disclose such papers “the disclosure of which would endanger the public.” Thus, the president was required to exercise his discretion to determine which of these obligations was paramount in any particular instance. 

This is precisely what Biden has done in this instance. He has determined that his legal and constitutional responsibilities require that the papers in question be provided to the Jan. 6 committee (just as Washington concluded that the St. Clair records should be turned over to the House committee). This is a determination that “he alone” can make. The former president no longer holds office and has nothing to say about his successor’s constitutional responsibilities. Nor is there a conflict between two branches of government, each of which must evaluate its own constitutional responsibilities, as was the case in United States v. Nixon. Thus, there is no occasion for the court to engage in any balancing of interests, and Chutkan’s decision was entirely correct.

Note that this analysis does not imply the incumbent president always has the last word with respect to a former president’s assertion of executive privilege. A different situation would be presented if, for example, the incumbent disagreed with his predecessor regarding the proper scope of executive privilege or if he merely believed it would be wise from a policy standpoint to disclose certain documents to the public. Such a “generalized public interest in disclosure” (as OLC described it in its 1986 opinion) may not constitute the type of issue as to which the incumbent’s judgment is final. But a solemn request from a committee exercising the House’s power as an “inquest” presents an issue of constitutional obligation as to which neither the court nor the former president may properly disturb the judgment of the incumbent. 

May Trump challenge the select committee’s authority to seek records even in the absence of a viable privilege claim?

Logically it might seem that a former president lacks grounds to challenge a request from a congressional committee for nonprivileged records. After all, the PRA establishes that those records belong to the public, not to the former president personally. If no privilege (official or personal) exists, one might argue the former president should have no more right to object to disclosure of presidential records than to disclosure of other official records or information that might reflect badly on his administration. 

At the same time, the PRA establishes a unique regulatory regime for presidential records that distinguishes them from ordinary official information. Recognizing the fact that such records historically were considered the president’s personal property, as well as the likelihood that these records are intermixed with records that are purely personal or political in nature, Congress provided protections for the former president’s interests, including that the records would be entrusted to professional and nonpolitical archivists for processing and access control.

In this light it is plausible (though I admit I am not entirely convinced) to suggest that the former president may seek judicial review of administrative decisions made by the archivist that result in the disclosure of his records contrary to the terms of the PRA. In this case the relevant provision of the PRA states that “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available ... to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available.”

Compliance with this provision is the legal responsibility of the archivist (subject to such direction as the sitting president may lawfully provide). Presumably, therefore, the archivist must have a reasonable basis to determine that the committee’s request falls within the parameters of the provision, that is, it involves a matter within its jurisdiction and the requested records contain information that is needed for the conduct of its business and is not available elsewhere. The archivist’s decision should be upheld unless it is arbitrary and capricious, a standard that would be adequate to ensure that the executive and legislative branches do not collude for purposes of embarrassing or harassing a former president.

In the Mazars case, the Supreme Court imposed more exacting standards to ensure that Congress did not seek to use its subpoena power to obtain from banks and other third parties the personal financial information of the sitting president. Here, however, Congress has established a statutory access procedure for information that is official and governmental in nature and has entrusted the operation of that procedure to a nonpolitical gatekeeper with expertise in administering the records at issue. The court’s standard of review should be appropriately deferential to both Congress and NARA. As Chutkan explained in her opinion, the Jan. 6 select committee’s requests satisfy that standard.

Does President Trump have standing to bring this suit? 

Whether Trump has standing to bring the suit is an issue that has not been raised by any party or amicus and was not addressed by Chutkan. It logically arises, however, from the Justice Department’s long-standing position that Congress lacks Article III standing to enforce its subpoenas because in such cases it suffers only an “institutional injury,” which cannot support Article III standing. 

Prior to oral argument in the Mazars case, the Supreme Court directed the parties to address whether the case was justiciable. The solicitor general responded by distinguishing the case at bar, where Trump was seeking to prevent a third party from complying with a congressional subpoena, from one in which a congressional committee was attempting to enforce a subpoena. The solicitor general explained that “[u]nlike the President’s suits here to vindicate his personal interest in protecting his private information from disclosure, a suit by a House committee seeking to enforce a legislative subpoena would be asserting only a ‘type of institutional injury’ that cannot support Article III standing.” By contrast, the petitioners in Mazars, “including President Trump in his personal capacity, plainly have Article III standing [because] [t]hey have alleged an imminent concrete and particularized harm (the exposure of confidential personal information), fairly traceable to the congressional subpoenas demanding that information, which would be addressed by an injunction against the disclosure of that information.” 

Whatever the merits of the Justice Department’s effort to distinguish Mazars from a congressional subpoena enforcement action, it does not explain why former President Trump would have standing to bring this action pursuant to the PRA. Here Trump is not seeking to protect private financial information, nor is he suing in his personal capacity. To the contrary, Trump has brought the action solely in his official capacity, the information he seeks to protect is official, not personal or private, and the injury he asserts is an institutional one to the presidency. It is difficult to understand, therefore, how the Department of Justice (assuming it has not changed its views on standing) can maintain that Trump has standing to bring this action.

To be sure, the D.C. Circuit rejected the Justice Department’s theory of standing rather definitively in last year’s en banc ruling in the McGahn case. Nonetheless, if the department believes that standing is absent, one would assume it has an obligation to say as much. And if the matter were to go to the Supreme Court, it would be particularly important to understand the Justice Department’s position so that it doesn’t claim another “drive-by” jurisdictional ruling.