Explainer-Can Trump Claim Executive Privilege to Shield Mar-a-Lago Documents?

By Jacqueline Thomsen

(Reuters) – A federal judge on Sunday granted former U.S. President Donald Trump’s request for a “special master” to review documents seized from his Mar-a-Lago resort, including to determine whether some may be protected by executive privilege.

Here’s an explanation of the scope of executive privilege and whether former presidents can claim it.


Executive privilege is the legal authority that allows certain White House records to be protected from lawmakers and courts so that presidents can get candid advice on important decisions.

Trump has repeatedly asserted the privilege as president in efforts to block records and testimony from Democratic congressional investigations, including the first impeachment inquiry of his presidency. No court has ruled on the merits of Trump’s executive privilege claims while he has been in office.

Presidents can also waive the privilege, as President Joe Biden did in response to a request for White House records by the congressional committee investigating the Jan. 6, 2021 riots at the US Capitol building by Trump supporters.


US courts have not definitively ruled on the extent to which former presidents can claim executive privilege. The US Supreme Court last year sidelined the question in Trump’s attempt to block White House records from the January 6 panel, leaving it a gray area in the law.

Former President Richard Nixon tried to assert the privilege to prevent the release of White House records after his resignation. The Court in that case said Nixon could be heard on his claims of privilege, but ultimately rejected his attempt to shield the records, finding that a sitting president is “in the best position” to do so. privilege settings.

Trump’s lawyers sought a special master, or a court-appointed third party, to review documents seized from Mar-a-Lago by federal agents in August and set aside any communications Trump had with his lawyers or material that covered by executive privilege. The DOJ opposed the request, arguing that the privilege does not apply.

To ultimately win a court order shielding the records, Trump would first have to prove he can claim the privilege even though he’s no longer in office, said Heidi Kitroscher, a law professor at Northwestern University. He said the former president’s team has only a “very weak argument” to do so, pointing to a lack of clarity from the Supreme Court.

Trump will then have to overcome Biden’s position that executive privilege does not apply to the materials and that he must show that any harm from privilege violations outweighs the government’s need for documents in its criminal investigation into the possession of classified records by Trump, Kitroser said.


Experts said they have never heard of a special master being appointed to decide whether executive privilege applies to documents.

In the case involving presidential records at Trump’s Mar-a-Lago resort, Biden has deferred ruling on whether the privilege applies to the National Archives and Records Administration. In a May letter to Trump’s private counsel months before the raid, the national archivist said it “would not be viable” for Trump to claim executive privilege, since the records could only be viewed by other branches of the executive branch.

Allowing someone outside the executive branch to decide whether the privilege applies to records is unprecedented, experts said.

“Having a third party decide between the claim of an incumbent and a former president violates the very constitutional basis of the privilege as presidential power,” said Mark Rozell, dean of the Schar School of Politics and Government at George Mason University.

(Reporting by Jacqueline Thomsen; Editing by David Bario and Lincoln Feast.)

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