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What is 'executive privilege,' the term at the center of the Mar-a-Lago legal battle?

SCOTT SIMON, HOST:

The legal battle over classified documents found at Mar-a-Lago continues, and one phrase that stands out as a point of contention is executive privilege. Jonathan Shaub joins us. He worked for years at the Department of Justice in the office that advises the executive branch on matters of privilege - now teaches at the University of Kentucky College of Law. Professor Shaub, thanks so much for being with us.

JONATHAN SHAUB: Oh, thanks for having me.

SIMON: I don't want to assume anything in these times. What exactly is executive privilege, in your judgment?

SHAUB: Well, you know, it's a hotly contested doctrine, but at its core, it's the idea that some documents and some information, if it were disclosed, would damage - you know, harm the public interest or harm the country in some way. And so it's an authority of the president to withhold certain kinds of information. And it really dates, in the terms of the Supreme Court, to the United States v. Nixon case in which the court held that - you know, that there is some confidentiality interest, a privilege, for communications the president has with his senior-most (ph) advisers, unless there is a compelling need for them by Congress or by the public.

SIMON: What about the Nixon v. General Services Administration case?

SHAUB: Yeah, so this was a follow-up case. It actually - there was not a Presidential Records Act then, which there is now. And that's sort of what's at issue here with former President Trump. But Nixon took all of his documents, and then Congress passed a law and said, these papers belong to the country. We want to take them. And Nixon actually sued and asserted privilege and said, even though I'm a former president, you can't go through all these old records 'cause they implicate executive privilege. And he lost. And Supreme Court said in this instance - you know, they rejected his claim, but they did have some ambiguous language in there about a former president having some authority to assert privilege. And that's the hook that former President Trump and the judge in this particular case have sort of hung Trump's authority on.

SIMON: Explain that reasoning to us, if you could, including that of Judge Cannon in Florida.

SHAUB: I mean, it's hard to explain in some ways, because I think the judge's opinion sort of fundamentally misunderstands what privilege is. The idea of privilege is that there could be harm from disclosure, and so it needs to be protected. And here, there's no disclosure at issue. It's not going to Congress. It's not going to be in public. So it's hard to understand what harm would result. But the judge seems to have bought former President Trump's argument that some of these documents contain his internal conversations or attorney-client conversations and the things that should be protected, even against the FBI, and that there needs to be a third party to review them to decide if that's applicable here, and that he has the authority to sort of raise these claims because he was a former president and he's familiar with these documents. And that's the part that sort of draws on the Nixon case.

SIMON: The third party being the special master.

SHAUB: Right, yeah, to review these documents for executive privilege.

SIMON: And how do you read the Department of Justice case, which is obviously appealing the judge's decision?

SHAUB: Yeah. I mean, I think the Department of Justice is - they filed an appeal. They also filed a motion for a partial stay, and they're kind of trying to give the judge a way out in some ways, to try to explain the nature of privilege. And the Department of Justice says, you know, there - at least there's a subset of these documents that are classified, and sort of by definition, those belong to the government. They're not Trump's personal records. They're not attorney-client information. They're classified information that belongs to the government, and the judge doesn't have the authority to tell the government that it can't use its own records, particularly when it's investigating - in a criminal investigation.

You know, and another sort of really important point from the first Nixon case - when, you know, Richard Nixon has these tapes from the White House about Watergate, there's a grand jury subpoena and an investigation. And the court said, yes, we recognize there's some need for confidentiality, but when there's a criminal investigation, the need of that criminal investigation trumps any kind of privilege. And so because this is a criminal investigation as well, even if you agreed with the former president that he has some privilege to assert, it wouldn't apply because it's a criminal investigation. And so the Department of Justice tries to sort of lay that out for the judge as well. And I think the judge sort of misunderstood the nature of privilege when she decided to appoint this special master.

SIMON: What about the argument we've heard invoked that the president can declassify anything, so anything in that pile of documents might be considered theirs to release or keep or not?

SHAUB: There is an uncertain constitutional area - right? - about the president's authority. And there are - there is some executive branch and Department of Justice precedent that would suggest presidents have almost sort of unilateral classification authority - when they're president, you know, not after they leave office. The problem here is there's no evidence of any sort of declassification that's happened. And even if it is declassified, the current president is the one that decides if it should be reclassified and considered classified today. So even if President Trump, when he was president, declassified the material, the fact that the Department of Justice is now saying this is classified information means that it's classified information right now, whatever happened in the past.

SIMON: The bottom line seems to be that a criminal investigation trumps any claim - interesting choice of words, but trumps any claim of executive privilege. And this is a criminal investigation, even if it ultimately doesn't wind up indicting the former president or not. There are several figures involved in a criminal investigation.

SHAUB: Exactly. I mean, and sort of the easiest way to think about this - you could get past all the contested doctrines - and everybody knows the United States v. Nixon is sort of the case on executive privilege, and it says very clearly that, you know, the privilege doesn't apply when you've got this specific need in a criminal investigation for the information. The classified documents are precisely part of the investigation because that's what we're trying to determine - you know, whether they were mishandled, whether they weren't returned when they were supposed to be. Even if you granted all the sort of ambiguity about executive privilege and construed it all in favor of Trump's claims, it would still fail at the last straw because it's a criminal investigation.

SIMON: Jonathan Shaub is a contributing editor at Lawfare and professor at the University of Kentucky College of Law. Thanks so much for being with us, sir.

SHAUB: Oh, thanks for having me.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Scott Simon is one of America's most admired writers and broadcasters. He is the host of Weekend Edition Saturday and is one of the hosts of NPR's morning news podcast Up First. He has reported from all fifty states, five continents, and ten wars, from El Salvador to Sarajevo to Afghanistan and Iraq. His books have chronicled character and characters, in war and peace, sports and art, tragedy and comedy.