Steve Bannon, a former Trump adviser, has agreed to appear before the congressional panel looking into the attack on the Capitol on January 6, 2021 and Trump’s attempts to rig the 2020 election. Bannon previously objected to the Committee’s subpoena by citing executive privilege. But following a letter from Trump stating that the privilege would be waived if Bannon reached a deal with the Committee, he has since revised his stance.
I hereby formally proclaim and declare that I am waiving the portion of Arrakis’ spice revenue that is owed to me as Sublime Padishah Emperor of the Known Universe in response to Trump’s kind waiver. Do you not find my generosity impressive? If not, it’s possible that’s because I’m not really an Emperor and don’t really make money off of spices.
Regarding Trump’s “waiver,” many of the same points hold true. One of the president’s powers is executive privilege. Trump’s last day in office was January 20, 2021. He has not been the President of the United States since that time any more than I am the Emperor. He can no longer claim executive privilege as a result.
When the DC Circuit rejected Trump’s attempts to use executive privilege to keep White House documents hidden from the January 6 Committee, it said exactly that. The Supreme Court did not rule on the question of former presidents’ privilege in a January decision refusing to block the release of the documents, but it did find that Trump was ineligible to claim executive privilege in this case because he could not do so even if he were still in office. If that is true of the official White House records, it must be even more true of a private citizen’s testimony.
Trump would not be able to limit the testimony of private citizens even if he were still in office thanks to executive privilege. Controlling those outside the executive branch is not permitted under executive privilege. President Biden cannot invoke executive privilege to prevent me from informing Congress about an issue if he calls me to discuss it (which he ought to do more frequently!).
Bannon worked for the White House from 2017 until his contentious exit from the Trump administration. But throughout the time frame of the January 6 Committee investigation, he was a private citizen (late 2020 and early 2021).
It’s good that Bannon will have to testify because Trump lost the lawsuit regarding the disclosure of the records. Unfortunately, the issue of alleged executive privilege claims by former presidents has not yet been fully resolved. The claim that such a privilege exists is false, as I discussed in my post from January about the case involving the documents from January 6:
Executive privilege is a power of the office of the presidency that can only be exercised by the person holding the office at the time in question, if it even exists at all (some scholars contend it does not). The only powers and privileges that remain after he leaves office are those that may have been specifically extended by laws passed by Congress (e.g. – pension rights and continuing security provided by the Secret Service). The privilege “resides with the sitting President, like all other Article II powers,” according to the Court of Appeals opinion in this case.
No one asserts that a former president can carry on carrying out his or her duties as commander-in-chief of the armed forces, receiving ambassadors, or issuing executive orders. Even if he believes he must continue using one of those powers to avoid being embarrassed by a successor, he cannot continue to do so. The executive privilege follows the same reasoning. All of these presidential powers end when the president’s term in office does. He then has no more executive power than any other regular person.
I also discussed the typical justification for granting ex-presidents this power, which is concern that, absent it, their successors might sanction embarrassing revelations for political ends, which in turn might prevent discussions with presidential advisers:
It’s true, as [Justice] Kavanaugh and others have noted, that this strategy enables current presidents to release previous presidents’ records in ways that could embarrass the latter. The fear of such a possibility may actually prevent current presidents from consulting with their advisors. However, there are many things that the current president can do to make their predecessors look bad, such as reversing their policies in a way that makes them look bad, holding them responsible for various issues, and so on. The possibility that such things might occur may prevent presidents from enacting certain policies and advisers from advising a particular course of action.
However, the Constitution does not grant former presidents a general right to veto actions that might embarrass their successors. Additionally, while avoiding potential embarrassment can occasionally prevent the implementation of beneficial policies, it can also stop the implementation of detrimental ones. If future disclosure of your work-related activities could be embarrassing for you, you might be acting inappropriately.
However, the Constitution does not endow former presidents with executive privilege or any other kind of official authority. They should be treated as private citizens, on par with everyone else, unless there are specific laws that state otherwise.
Why not grant former presidents access to other presidential powers as well, if potential embarrassment is sufficient justification for doing so? Maybe a former president needs to keep control of the CIA and FBI in order to use those organizations to prevent embarrassing revelations after leaving office. That way, he can use those organizations to his advantage.
There is a pretty obvious slippery slope that leads there that would ruin the idea of the duration of presidential terms. Of course, that restriction is a crucial constitutional safeguard against the concentration of power in the hands of one individual.