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Executive privilege is a thing that's only available to executives ... which Donald Trump is not

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24.09.2021

Denied his access to Twitter, Donald Trump has taken to issuing regular missives to his supporters—almost all of which come with a link for providing donations. On Wednesday, one of those statements made clear that, even before the House Select Committee investigating Jan. 6 issued its first subpoenas, Trump intended to fight them using “executive privilege.”

"Executive privilege will be defended, not just on behalf of my Administration and the Patriots who worked beside me, but on behalf of the Office of the President of the United States and the future of our Nation," wrote Trump.

No one has relied more heavily on executive privilege than Trump. During his time at the White House, and especially during his first impeachment, it’s easy to determine the number of document and testimony requests that were met with a claim of executive privilege—because it was all of them. Trump even instructed members of executive branch agency to refuse to attend long-standing regulatory meetings, or refuse to provide standard information, with the idea that he might claim privilege. In almost all these instances, he didn’t actually ever make such a claim. He also didn’t provide the requested information. Under Trump, executive privilege became a black box that could be placed around any information, at any time, and because it was never really claimed, never had to defend itself in court.

But, for all the ways that Trump has applied executive privilege in the past, there is one thing he can’t do: He can’t call on it from beyond the political grave. As Rep. Jamie Raskin said in response to the missive from Mar-a-Lago, Trump’s thoughts on executive privilege aren’t particularly meaningful at this point “because there’s no president involved—there’s no such thing as a former president’s executive privilege.”

The one person who decides what information gets shared now is the actual president. And no matter what the MAGA crowd might think, the actual president is Joe Biden.

Executive privilege is not a term found in the Constitution. The extent to which the executive can hold secrets, and the actions that the Congress can take to reveal them, is a balance that has always been maintained through a battle of........

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