Douglas Letter, the lawyer for the January 6th Congressional Committee, has argued that former President Donald J. Trump can no longer claim executive privilege, including over communications with Mark Meadows, his former chief of staff, when they were both in office. The relevant issue, however, is whether the communication was privileged at the time it was made. If so, it should be an enduring privilege that encourages confidential communications during their incumbency. Pictured: Trump and Meadows at the White House, on July 29, 2020. (Photo by Alex Wong/Getty Images)
The Constitution provides no clear answer to whether a former president can claim executive privilege over communications that occurred while he was president. Both policy and analogy to other privileges would suggest an affirmative answer. A former spouse, a lawyer's former client, and a penitent's former priest can claim privilege -- and so could a former member of Congress and a former judge. The relevant issue is whether the communication was privileged at the time it was made. If so, it should be an enduring privilege that encourages confidential communications during their incumbency.
The lawyer for the January 6th Congressional Committee, Douglas Letter, however, has argued that former President Donald J. Trump can no longer claim executive privilege, including over communications with his former chief of staff when they were both in office. According to The New York Times, this is what he said: "The Constitution does draw a clear line between a president and an ex-president. An ex-president is somebody who rejoins the great unwashed" -- by which he apparently means you and me, who never had any executive privilege.
Where in the Constitution he or the committee find the "clear line" that supports his cramped interpretation of privilege is unclear. The issue is an open one that will likely be decided by the Supreme Court. I doubt that justices who are now retired or intend someday to retire -- and join the "unwashed" -- would be thrilled if Congress were to subpoena their former law clerks to disclose their confidential discussions about decisions they wrote while they were still among the washed.
In the absence of a definitive judicial decision to the contrary, former chief of staff Mark Meadows would seem to be required to accept former President Trump's claim of executive privilege. Were he now to divulge communications that the courts ultimately held were privileged, the damage would be irremediable. The cat could not be returned to the constitutional bag. On the other hand, if he does not now disclose and the courts ruled that he must, the only harm would be some delay. The balance of harms clearly favors non-disclosure at this time.
That is precisely why it is so outrageous for the committee now to be seeking the criminal indictment of Meadows for refusing to disclose material that may well be constitutionally privileged. They should seek to have the courts rule first on the constitutional issue, and if Meadows then refuses to comply with a judicial order, they can seek criminal penalties. This chronology is especially required because Meadows has said that he would comply with court orders.
Seeking a court order first is also required by the constitutionally mandated separation of powers. Congress cannot simply compel the executive to bow to its will when there is a conflict between the two elected branches, the third branch -- the judiciary -- decide who is correct under the constitution.
Finally, criminal indictments should never be used to determine what the law is. It should only be used against individuals who know that they are violating existing law that is already clear.
The Justice Department should therefore refuse any congressional demand to indict Meadows. If the Justice Department improperly secures an indictment from a grand jury -- which they can easily do because, as one judge put it, grand juries would "indict a ham sandwich" if asked to do so -- the courts should immediately dismiss it and demand that the Justice Department first get a judicial ruling on the constitutional issue.
The precedent that would be established by allowing an indictment of a former chief of staff to the president for the "crime" of seeking a judicial ruling before irretrievably disclosing information that may well be constitutionally privileged would do great harm to our constitutional structure. Its victims would not only be the president and its former incumbent, but all of us "unwashed" who depend on the courts to guarantee our constitutional rights.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and served on the legal team representing President Donald Trump for the first Senate impeachment trial. He is the author of numerous books, including his latest, The Case for Color-Blind Equality in an Age of Identity Politics. His podcast, "The Dershow," is available on Spotify and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.