For Trump, It’s a Tale of Two Privileges — and Three Passports

President Trump wants his papers, and passports, back. Mr. Trump, likely previewing a line of defense should he be charged under the Espionage Act and related statutes, took to his Truth Social platform to say, “It has just been learned that the FBI, in its now famous raid of Mar-a-Lago, took boxes of privileged ‘attorney-client’ material, and also ‘executive’ privileged material, which they knowingly should not have taken.”Mr. Trump did more than just complain that FBI agents took boxes of privileged material. He submitted something like an official request: “By copy of this TRUTH I respectfully request that these documents be immediately returned to the location from which they were taken.”Mr. Trump added to that demand on Monday by citing a new grievance, writing on Truth Social: “In the raid by the FBI of Mar-a-Lago, they stole my three Passports (one expired), along with everything else.” He labeled this “an assault on a political opponent never seen before in our Country.” The state department, which issues passports, maintains that it possesses “authority to deny and revoke a U.S. passport under certain conditions,” ranging from the document being obtained fraudulently to its holder accruing a federal tax debt of more than $52,000. The search warrant that allowed entrance to Mar-a-Lago does not specify the documents seized. While Judge Bruce Reinhart is unlikely to view this social media pronouncement as anything like an official court filing, the posting by Mr. Trump might preview a defense strategy should the documents recovered eventually lead to an indictment and trial. Mr. Trump looks set to rely on invocations of attorney-client and executive privilege to defend himself against a battery of potential federal charges. Attorney-client privilege refers to a principle that keeps confidential communications between an attorney and his client. In a 1981 case, UpJohn Co v. United States, the high court held: “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.”Attorney-client privilege is not absolute. It does not apply if the relationship with the lawyer was used in furtherance of a crime, or if the information in question was not expected to be kept private or was disclosed to a third party.The privilege otherwise renders inadmissible in court the full range of communication between an attorney and his client. It is not yet clear which documents Mr. Trump seeks to protect. While attorney-client-privilege adheres to every such relationship, executive privilege permits the president and executive branch officials to shield some of their records from the other two branches of government. It is intended to safeguard separation of the branches. This doctrine is rooted not in explicit constitutional remit but in the notion of the most important constitutional constraint on government, separated powers. There are limits to this privilege, articulated memorably in Nixon v. United States, in which a unanimous court held that presidential privilege is not absolute and gives way to “the fundamental demands of due process of law in the fair administration of justice.”That meant that President Nixon had to comply with a subpoena to turn over to a United States district judge, John J. “Maximum John” Sirica, tapes and documents relating to Watergate.In that decision, Chief Justice Burger explained that “the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties.” However, this privilege can be overcome by an adequate showing of need.As far back as the 1790s, the House sought to compel President Washington to divulge details of the Jay Treaty consummated with Britain, drafted by Alexander Hamilton and bitterly opposed by Thomas Jefferson. According to the Congressional Research Service, “the privilege, which is constitutionally rooted, could be invoked by the President when asked to produce documents or other materials or information that reflect presidential decision making and deliberations that he believes should remain confidential.” The issue of executive privilege was a crucial one at the recent trial of a one-time adviser to Mr. Trump, Stephen Bannon, who endeavored to invoke the shield as a means of warding off his contempt of Congress charge for ignoring the summons of the January 6 committee, of which he was eventually convicted. While there were reports that Mr. Trump was willing to waive any prerogatives relating to executive privilege, prosecutors claimed that in an interview with them Mr. Trump’s one-time lawyer, Justin Clark, maintained “that the former President never invoked executive privilege over any particular information or materials.”

For Trump, It’s a Tale of Two Privileges — and Three Passports

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