Donald Trump and the Presidential Communications Privilege

Donald Trump enabled an insurrection on Jan. 6, 2021. Despite the clear-cut evidence against him, more than four years later the federal case against him was dismissed. And in that tale of delay hangs a tale—a tale revealed painfully in the report recently filed by Special Counsel Jack Smith.

The legal issues surrounding Trump’s criminal behavior deserve to be memorialized before they become footnotes to history—both for publicizing the historical record and for some consideration of what the resolution of these issues during Smith’s investigation might portend in the next four years.

One such issue is Trump’s invocation of the presidential communications privilege as a means of attempting to shield his conversations with his subordinates and, collaterally, of delaying the Smith investigation. The presidential communications privilege—which is intended to protect “the confidentiality of the President’s decisionmaking process”—is an offshoot of the idea of executive privilege, which the Supreme Court has identified as essential to enable presidential action. The presidential communications privilege is intended to protect the communications a president has with his closest advisers with the intent of fostering candor in their communications.

But courts have recognized that the privilege protecting needed candor and confidentiality must be balanced against the public’s need for information relevant to a criminal investigation. As the seminal case involving an investigation of former Secretary of Agriculture Mike Espy put it:

[I]n order to overcome a claim of presidential privilege raised against a grand jury subpoena, it is necessary to specifically demonstrate why it is likely that evidence contained in presidential communications is important to the ongoing grand jury investigation and why this evidence is not available from another source.

It is relatively easy to understand why claims of a presidential communications privilege arose during Smith’s investigation. A critical part of that investigation was establishing Trump’s state of mind—that is, his intent behind the actions he took on Jan. 6. Did he know he had lost the election? What did he say when he was told that Vice President Pence was in danger, and what did he mean by what he said? What was the nature, more broadly, of his pressure campaign to get Pence to void the election? These are questions that only those who spoke with Trump could answer.

And so Smith sought the testimony of several close presidential aides (14 such aides, to be exact). As described in his report, this effort to secure their testimony resulted in a prolonged period of litigation during which Trump repeatedly tried to invoke the presidential communications privilege in an effort to block grand jury testimony by his associates. (The relevant portion of the report is on pages 116-122.)

Though there were some references to this litigation in earlier press reports, only when litigation from some press organizations led to the release of a number of the relevant court orders or opinions from the U.S. District Court for the District of Columbia court did the contours of that litigation become more widely known. That release was, however, in late October 2024, and only a few commentators paid much attention at the time, given the pendency of the upcoming elections.

To summarize, what Smith reports and the records reflect is that the district court repeatedly assumed that the presidential communications privilege applied to Trump’s communications with his subordinates but uniformly then found that the special counsel’s need for the relevant testimony overcame the privilege.

As best one can see, the nature of Trump’s arguments was not novel. He repeatedly asserted that the privilege applied and argued that testimony would give rise to national security concerns and such. In raising these arguments, Trump was not substantively saying anything different from what Bill Clinton said when he, likewise, was seeking to prevent grand jury testimony about his conduct.

To be sure, to some degree, Trump made novel arguments. Judge Beryl Howell’s first opinion, for example, spends some time dismantling an argument by Trump that the merits of the underlying investigation must be considered as part of the court’s evaluation of the special counsel’s need for the testimony—an argument so weak that Trump doesn’t appear to have relied on it going forward after it was rejected this first time. Similarly, in a later ruling, Judge James Boasberg rejected an argument by Trump that the special counsel hadn’t shown the requisite need because Smith could simply talk to another member of Trump’s inner circle (while asserting a presidential communications privilege over testimony from those people as well, meaning that under Trump’s reasoning, Smith couldn’t talk to anyone.)

On the whole, however, Trump’s arguments were no different from the failed arguments that Clinton (and Nixon before him) had advanced. In every instance, the courts determined that the “importance and unavailability” of that “vital” evidence “outweigh[ed]” the qualified privilege for presidential communications and ordered that it be produced promptly to the grand jury.

Trump’s arguments were not, however, intended to succeed. They were intended to delay and eat up time—and in that they were admirably successful. As Smith details, this aspect of Trump’s efforts to avoid liability (along with sundry other delaying tactics—detailed more fully in Smith’s report at pages 107-136) likely delayed the investigation by at least eight months and perhaps much longer. While the Supreme Court’s immunity decision in Trump v. United States was the ultimate death blow to the prosecution, the investigative delay that occurred beforehand was the weaponization of due process and death by a thousand cuts until the election—all to avoid ultimate liability.

What then, can we learn from this episode in Trump’s invocation of a privilege and Smith’s acknowledgment that it might apply?

As an initial matter, it is striking to see the generosity of the special counsel and the courts in assuming that the presidential communications privilege could apply. It would have been very reasonable for the special counsel to argue that the information sought from the witnesses was not subject to the presidential communications privilege because it did not concern presidential decision-making. All, or almost all, of them would have been communications relating to a candidacy—and those sorts of communications are almost by definition nonpresidential in nature. Nonetheless, the government conceded the possibility of application and litigated the question of privilege on the substantive merits.

That decision to fight on the merits may have had some impact on the speed with which the privilege fight was adjudicated, but it is also worth remarking that Trump, unlike Clinton, was recalcitrant. After losing his first privilege fights, Clinton more or less acceded to subsequent subpoenas. By contrast, as Smith notes, Trump reasserted a failing presidential communications privilege for every aide, leading to a remarkable requirement that the special counsel litigate the issue on a bulk basis. This recalcitrance negates to a very real degree the sometimes-frequent complaint that Smith (and by extension former Attorney General Merrick Garland) didn’t move quickly enough—there is truth to that; but there is also a reasonable response in that the litigation required time. 

More to the point, on a higher level, Trump has solved the cheat code for the judicial system. Supporters of the legal system see due process and adjudication of disputes as a benefit—indeed, the single most salient benefit of the system. Trump, in turn, sees due process as a fundamental weakness. He sees it as a means of delay and of imposing costs on his opponents. The result (as has played out) is that justice delayed may sometimes truly be justice denied.

Finally, it is worth reflecting on how the presidential communications and executive privileges may mutate in light of the Trump immunity decision. Whatever one may think of that decision (and I think it horribly benighted), there can be little doubt that it expands the scope of presidential conduct. Where one might previously have thought that presidential acts in furtherance of a criminal conspiracy were not immune, the Supreme Court has now told the American people that many of those acts (such as directing the Department of Justice to exhaust valuable resources to examine bogus claims of fraud) are absolutely immune from prosecution and others (such trying to browbeat Vice President Pence into refusing to certify the electoral count) are contingently immune, subject to an evidentiary hearing.

But if the president’s actions are now more broadly immune, then logically it may well follow that his communications in service of those actions are likewise more broadly privileged.

Had the special counsel challenged the application of the presidential communications privilege, it is likely that the district court (pre-immunity decision) would have rightly found that these communications were not subject to privilege because they were nonpresidential in nature. Under the current Supreme Court view of executive power, however, that conclusion would almost surely be wrong. It would, instead, be clearly within the ambit of the privilege for core executive actions, and presumptively subject to the privilege for other aspects of the president’s actions.

Similarly, since the Trump court also held that certain evidentiary aspects of a president’s actions may be subject to exclusion from a trial, it would seem to logically follow that (at least as to those aspects within the absolute immunity of presidential action) the presidential communications privilege might also be absolute. In other words, it might now be the case that Espy’s needs standard should be revisited.

All of this goes to show, in a different light, how unmoored from precedent the Trump immunity decision was. But it is also the logical implication of that decision. So much so that Smith’s success in piercing the presidential communications privilege may well be the last such instance—yet another unfortunate result of the Trump case.