The Supreme Court’s recognition of executive privilege in U.S. v. Nixon has proven to be an utter disaster for democracy, writes the attorney who argued and won the case.
Former President Donald Trump has been granted the opportunity to throw a wrench into the progress of the Justice Department’s investigation into his wrongful squirreling of classified documents and other public-owned documents at Mar-a-Lago.
As these latest uses of this relatively new privilege powerfully illustrate, executive privilege comes at a huge cost to our governmental institutions searching for the truth. It is time to revisit the underpinning of executive privilege and to recognize that it rests on a false premise—that it is supposedly necessary to protect confidential White House communications in order to assure candor in advising the president. Decades of experience have shown that this notion was and is misguided.
Nixon had reserved the option to ignore any decision by the Supreme Court that was not “definitive.” It my closing argument, I asked the court to render a “definitive” ruling against Nixon. We now know—ironically, from access to the justices’ own internal papers—that the, unanimous decision was crafted as a compromise.
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