President Donald Trump’s legal battles over the next two years have already begun, Politico reported Friday morning. It appears that the president intends to block subpoenas using a presidential protection he’ll try to extend to everyone.
Courts and justice reporters Kyle Cheney and Josh Gerstein explained that a legal dispute over Trump’s Kennedy Center “renovation” is becoming a test of how far presidents can use executive privilege to shield their communications. The outcome could influence congressional investigations into Trump’s administration and establish rules that outlast his presidency.
Last week, Justice Department lawyers clashed in court over who decided to violate a judge’s order to be informed about major work on the East Potomac Golf Course. Trump’s lawyers claimed that his Truth Social posts were protected by “executive privilege.”
Now there’s another dispute, this time over the Kennedy Center, where the White House is trying to conceal information through executive privilege. It centers on a three-month exchange of approximately 180 messages between Commerce Secretary Howard Lutnick and Kennedy Center operator Matt Floca.
The conversation began the day after a federal judge ordered the center’s board to remove Trump’s name from the building. Preservation groups challenging the redesign sought details about the communications, but that’s when the White House lawyers asserted privilege. According to them, the messages reflected presidential advice or deliberations among close advisers.
That may not work out in court.
Executive privilege protects certain confidential presidential communications, but it is not a shield for the president to hide behind. Courts can require disclosure when competing legal interests outweigh such confidentiality. They just haven’t done it yet.
Although the protection is particularly strong in national security and foreign affairs, Trump is invoking it over building renovations, a golf course and his administration’s dealings with law firms. Now he’s invoking it as it pertains to investigations about who supported what.
“They could really damage some of their institutional sort of positions that they might want to use against Congress if they try to litigate them,” said former White House Counsel’s office member Jonathan Shaub. He has a forthcoming book that will address executive privilege.
“They’ve got to do some real thinking. … It doesn’t seem like there has been that kind of larger strategic thinking yet,” Shaub said.
Politico’s legal reporters said that what Trump is doing in the Kennedy Center and Potomac Golf Course cases is “stretching the boundaries of presidential secrecy in new ways. The Justice Department has floated the prospect of executive privilege assertions in cases challenging Trump’s effort to punish law firms, authorize military strikes on alleged drug boats and penalize the BBC for a piece about the Jan. 6 attack on the Capitol. He tried unsuccessfully to assert it while he was out of office, to ward off Congress’ Jan. 6 investigation.”
They assume that as investigations into the administration increase under a new Congress, Trump’s people are looking for new ways of protecting themselves.
Thomas Spulak, who was a top lawyer for the House in the 1990s, made it clear to Politico, “The House must have the ability to prevail when the law and facts are on its side and overcome what are likely to be extremely broad invocations of executive privilege.”
If Trump continues to use executive privilege to block the production of documents that could end up at the U.S. Supreme Court, Then they can simply run out the clock in two years.
Law professor Jessica Roth at Yeshiva University predicts it will be a difficult problem for the White House.
“If they’re asking for documents or information from third parties who are private parties, even if the White House asserts executive privilege, I think that it’s going to be an uphill battle, to say the least, for the White House,” she said.
Politico said four Justice Department attorneys told U.S. District Judge Amir Ali they would invoke “broad claims of executive privilege” to block access to any of the records that dealt with the administration’s shakedown of law firms.
Former President Richard Nixon tried the same thing with the tapes that recorded conversations in the Oval Office. But on July 24, 1974, in United States v. Nixon, the Supreme Court unanimously rejected his effort to withhold the subpoenaed recordings.
The central question is where legitimate presidential confidentiality ends and accountability begins. The Kennedy Center case illustrates the problem. The Kennedy Center fight is about more than renovations. It could help decide how much a president can keep secret and when courts can force the White House to turn over information. It will be a decision that could affect future presidents, too.