OF COURSE, THE TRUMPISTS INSIST HE'S STILL PRESIDENT:

There are three key reasons for this misconception. The first lies in the basic fact that the legal landscape in 2021 is different than the legal landscape in 1977. When the Supreme Court was adjudicating Nixon v. GSA, the Presidential Records Act did not exist yet. The Act now does exist, and it explicitly provides the incumbent president the decisive authority over whether the privilege will be asserted for the executive branch. Hence, President Biden's "authority is at its maximum" by acting pursuant to an express congressional authorization. And former President Trump's authority, if any, would be at the "lowest ebb" conceivable by asserting a claim that is incompatible with Congress's explicit act plus incompatible with the incumbent president's authority.

Second, the position of the incumbent president in Nixon v. GSA was substantially different from the position of the incumbent in Trump v. Thompson, and so was the nature of the challenge by the former president. The question before the court in 1977 was the constitutionality of a predecessor statute which required former President Nixon to transfer all his presidential records to the Archivist for review and cataloguing. The nature of the challenge proved critical in that case, because Nixon was not actively fighting against a particular disclosure; he was challenging the statute on its face. Therefore, while the court did opine that any interest Nixon might have in confidentiality was reduced by the fact that President Ford had signed the law and President Carter was defending the law, that statement was still made in the context of a facial challenge to a statute, not a request for a specific disclosure.

That fact distinguishes Nixon v. GSA from Trump v. Thompson. In the former, then-incumbent President Carter was arguing for the constitutionality of a statute on its face--a statute which included a nod to executive privilege. In the present case, President Biden has affirmatively and expressly waived executive privilege over the documents in question. Simply put, the two are not the same.

It is a legal truism that a legal privilege is held by the party to whom its benefit accrues. A client benefits from the attorney-client privilege because it allows the client to candidly seek and obtain legal advice. A patient benefits from the psychotherapist-patient privilege for much the same reason. With this in mind, it is clear that Nixon v. GSA already answered this question: "the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic." In other words, it is a governmental privilege, not a personal privilege.

It naturally follows, then, that because the executive privilege is a governmental privilege, it can be expressly waived only by a representative of the government. Even if it may be asserted by a former president, it can be waived by the incumbent, and that waiver means that the information in question cannot be withheld from disclosure by any other interested party. Just as a former CEO lacks the legal authority to prohibit a corporation's in-house counsel from releasing information if the current CEO expressly waives the attorney-client privilege on behalf of the corporation, a former president lacks the legal authority to prohibit an executive branch official from releasing information if the incumbent president expressly waives the executive privilege on behalf of the executive branch.

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