No. 21-932 

In The 

Supreme Court of the United States 

DONALD J. TRUMP, 

Petitioner, 

v. 

BENNIE G. THOMPSON, et al.,

Respondents. 

On Petition for a Writ of Certiorari 

to the United States Court of Appeals 

for the District of Columbia Circuit 

BRIEF OF AMICI CURIAE GOVERNMENT 

ACCOUNTABILITY PROJECT, GOVERNMENT 

INFORMATION WATCH, NATIONAL SECURITY 

COUNSELORS, LOUIS FISHER, HEIDI 

KITROSSER, MARK J. ROZELL, JONATHAN 

SHAUB, AND MITCHEL A. SOLLENBERGER IN 

OPPOSITION TO CERTIORARI 

LOUIS CLARK KELLY MCCLANAHAN 

GOVERNMENT Counsel of Record

 ACCOUNTABILITY PROJECT NATIONAL SECURITY

1612 K St., NW COUNSELORS 

Suite 1100 4702 Levada Terrace 

Washington, DC 20006 Rockville, MD 20853 

202-441-0333 301-728-5908

LouisC@whistleblower.org Kel@NationalSecurityLaw.org

Counsel for Amici Curiae 

Att. 2

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TABLE OF CONTENTS 

 

TABLE OF CONTENTS.......................................... i

TABLE OF AUTHORITIES.................................... iii

INTERESTS OF AMICI........................................... 1

SUMMARY OF ARGUMENT................................. 2

ARGUMENT.............................................................. 3

I. PETITIONER’S CLAIM DOES NOT

FIT WITHIN THE YOUNGSTOWN

SCHEME............................................. 3

II. PETITIONER’S CLAIM IS

INCOMPATIBLE WITH THE

PRA ...................................................... 8

III. PETITIONER LACKS THE

CONSTITUTIONAL AUTHORITY

TO ASSERT ANY

CONSTITUTIONAL PRIVILEGE.. 12

A. NIXON V. GSA WAS

DECIDED IN A

SIGNIFICANTLY

DIFFERENT CONTEXT ...... 13

B. NIXON V. GSA IS ABOUT

PRESERVING PROTECTED

STATUS................................... 17

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CONCLUSION...... ................................................... 22

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TABLE OF AUTHORITIES 

 

CASES: PAGES: 

Cannon v. Univ. of Chicago, 441 U.S.

677 (1979)........................................................9

Conn. Nat’l Bank v. Germain, 503 U.S. 249

(1992)................................................................9

Goodyear Atomic Corp. v. Miller, 486 U.S.

174 (1988)........................................................9

In re Von Bulow, 828 F.2d 94 (2d Cir. 1987)...14

Little v. Barreme, 6 U.S. 170 (1804).................9

Marks v. CIA, 590 F.2d 997 (D.C. Cir. 1978)..9

Medellin v. Texas, 552 U.S. 491 (2008)............3

Merrill Lynch v. Dabit, 547 U.S. 71 (2006)......9

*Nixon v. Adm. of Gen. Servs., 433 U.S. 425

(1977)................................................................passim

Nixon v. Freeman, 670 F.2d 346 (D.C. Cir.

1982).................................................................11

Pa. v. Union Gas Co., 491 U.S. 1 (1989)...........11

Public Citizen v. Burke, 843 F.2d 1473

(D.C. Cir. 1988)...............................................6, 17

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Trump v. Mazars USA, LLP, 140 S. Ct. 2019

(2020)................................................................6

United States v. Nixon, 418 U.S. 683 (1974)...19

Upjohn Co. v. United States, 449 U.S. 383

(1981)................................................................15

Wi-LAN, Inc. v. Kilpatrick Townsend &

Stockton LLP, 684 F.3d 1364 (Fed. Cir.

2012).................................................................14

*Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952)........................................passim

STATUTES AND RULES: PAGES: 

44 U.S.C. § 2204...................................................10

44 U.S.C. § 2208...................................................8, 10

Exec. Order 13233 ...............................................8

Exec. Order 13489 ...............................................8

Presidential and Federal Records Act

Amendments of 2014, Pub. L. 113-187.......7

 

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MISCELLANEOUS: PAGES: 

 

Ronald J. Ostrow & David Savage, Senate

Panel to Receive Rehnquist Documents;

Administration Ends Impasse on Memos

Written as Legal Advisor to Nixon; Scalia

Hearings Open, L.A. Times, Aug. 6, 1986,

at A1. ................................................................16

Robert C. Randolph & Daniel C. Smith,

Executive Privilege and the Congressional

Right of Inquiry, 10 Harv. J. on Legis.

621 (1973)........................................................16

 

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INTERESTS OF AMICI1 

 

The Government Accountability Project, 

Government Information Watch, National Security 

Counselors, Louis Fisher, Heidi Kitrosser, Mark J. 

Rozell, Jonathan Shaub, and Mitchel A. Sollenberger, 

(collectively “Amici”) respectfully submit this Amici 

Curiae Brief in Opposition to Certiorari. All parties to 

this litigation consent to the filing of this Brief. Amici 

are divided into two categories: (1) non-profit 

organizations organized under Section 501(c)(3) of the 

Internal Revenue Code which specialize in, inter alia, 

government transparency and accountability issues; 

and (2) law professors and/or scholars who teach, 

research, and/or write about topics related to 

Executive Privilege and/or the Presidential Records 

Act. They submit this Brief in support of Respondents 

to explain why there is no legitimate basis for a former 

President to prevail in a case in which the incumbent 

President has expressly waived the relevant 

privileges, and that because there is accordingly no 

reason to grant a preliminary injunction on the 

grounds that former President Trump might prevail, 

there is no need for this Court to review the case on 

the merits. Their interest in this case is ensuring that 

a former President cannot use claims of privilege 

under the Presidential Records Act as a means to 

override the legitimate interests of the incumbent 

1 Pursuant to Supreme Court Rule 37.6, undersigned counsel 

states that no party’s counsel authored this Brief in whole or in 

part. Nor did any party or party’s counsel, or any other person 

other than amici curiae or their counsel, contribute money that 

was intended to fund preparing or submitting this Brief.

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President and the American people in government 

transparency and accountability.

SUMMARY OF ARGUMENT 

 

There is no legal theory of privilege which 

would allow former President Trump to prevail in this 

litigation, and this Court should accordingly affirm 

the District Court’s Order—and the Circuit Court’s 

affirmation thereof—because of Petitioner’s failure to 

show a likelihood of success. Because any preliminary 

injunction or stay at this point would only be in the 

service of delay, and because, as the House of 

Representatives Select Committee to Investigate the 

January 6th Attack on the United States Capitol 

(“Select Committee”), the National Archives and 

Records Administration, and numerous amici curiae

argued, there is an overwhelming need for the Select 

Committee to receive this information as soon as 

possible, the Court should not assist in Petitioner’s 

attempts to delay the inevitable. 

Amici fully endorse the ruling of Judge Tanya 

S. Chutkan in this matter and the Circuit Court’s 

decision to affirm it. Amici urge the Court not to grant

certiorari because Petitioner’s arguments are not 

supported and, as the lower courts have found, he has 

failed to show a likelihood of success. However, Amici 

also respectfully maintain that the courts below did 

not go far enough. Should the Court grant certiorari, 

it should do so only to summarily affirm the below 

decisions and, ideally, to explicitly affirm that no 

former President may successfully assert Executive 

Privilege over information for which the incumbent 

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President has expressly waived it. Both courts below 

have rightly found that former President Trump’s 

arguments on this point are without merit, so Amici 

urge the Court to reach the same outcome by either

denying certiorari or, alternatively—if the Court 

decides to review this case—to settle this question 

more conclusively based on the arguments presented 

herein.

ARGUMENT 

 

I. PETITIONER’S CLAIM DOES NOT FIT 

WITHIN THE YOUNGSTOWN SCHEME 

“The President’s authority to act, as with the 

exercise of any governmental power, ‘must stem either 

from an act of Congress or from the Constitution 

itself.’” Medellin v. Texas, 552 U.S. 491, 524 (2008) 

(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 

U.S. 579, 585 (1952)). “Justice Jackson’s familiar 

tripartite scheme provides the accepted framework for 

evaluating executive action.” Id. Simply put, this test 

is as follows:

1. When the President acts pursuant to 

an express or implied authorization of 

Congress, his authority is at its 

maximum, for it includes all that he 

possesses in his own right plus all 

that Congress can delegate. In these 

circumstances, and in these only, may 

he be said (for what it may be worth) 

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to personify the federal sovereignty. . 

. .

2. When the President acts in absence of 

either a congressional grant or denial 

of authority, he can only rely upon his 

own independent powers, but there is 

a zone of twilight in which he and 

Congress may have concurrent 

authority, or in which its distribution 

is uncertain. . . .

3. When the President takes measures 

incompatible with the expressed or 

implied will of Congress, his power is 

at its lowest ebb, for then he can rely 

only upon his own constitutional 

powers minus any constitutional 

powers of Congress over the matter. 

Courts can sustain exclusive 

presidential control in such a case 

only by disabling the Congress from 

acting upon the subject.

Youngstown, 343 U.S. at 635–38 (Jackson, J., 

concurring) (emphasis added). At its core, this case 

boils down to a dispute over how Justice Jackson 

would classify a former President’s ability to control 

information after the end of his Administration.

In order for a former President to unequivocally 

assert a personal ability to invoke any privilege held 

by the Office of the President over the objections of the 

incumbent President, he would have to “personify the 

federal sovereignty.” Id. at 636. In other words, he 

would need to act “pursuant to an express or implied 

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authorization of Congress.” Id. at 635. This is the 

category Petitioner attempts to lay claim to, arguing 

that his right to do so is authorized both by the 

Constitution and by the Presidential Records Act

(“PRA”). However, not only does former President 

Trump’s claim not fit within the first category, it does 

not even fit within the framework. In order to explain 

this case in terms of Youngstown, the Court would

need to create a fourth, even weaker category:

4. When a former President takes 

measures incompatible with the 

expressed or implied will of both 

Congress and the incumbent 

President, his power is virtually 

nonexistent, for then he can rely only 

upon his own constitutional powers 

minus any constitutional powers of 

Congress over the matter and minus 

any constitutional powers of the 

incumbent President over the matter. 

Courts can sustain exclusive control

by a former President in such a case 

only by disabling both the Congress

and the incumbent President from 

acting upon the subject.

To the extent that the Court recognizes some 

form of presidential communications privilege that 

can be invoked by a former President over the 

objection of an incumbent President—which, 

notwithstanding Nixon v. Administrator of Gen. 

Servs., 433 U.S. 425 (1977) (“Nixon v. GSA”), it should 

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not, as explained below—it is this fourth category into 

which such an assertion would fall.

As a practical concern, however, it is impossible 

to imagine a scenario where such authority could be 

held to exist, where a court would nonetheless choose 

to itself “intrude[] into the executive function and the 

needs of the Executive Branch,” id. at 449, simply 

because it believed that the duly elected head of the 

Executive Branch was not properly safeguarding his 

own branch’s institutional interests. In order to do so, 

it would have to ignore: (1) the fact that “[i]t is true 

that only the incumbent is charged with performance 

of the executive duty under the Constitution,” id. at 

448; (2) the observation that “the fact that [the 

incumbent does not] support[] [the former President]’s 

claim detracts from the weight of his contention,” id.

at 449; and (3) the fact that “the incumbent President 

is not constitutionally obliged to honor [a] former 

President[’s] invocation of executive privilege,” Public 

Citizen v. Burke, 843 F.2d 1473, 1479 (D.C. Cir. 1988),

This framing may sound like hyperbole, but that is 

exactly what Petitioner is asking this Court to do, and 

the Court should forcefully decline. The Circuit 

Court’s opinion rightfully noted that because 

Petitioner is no longer the President, the separation of 

powers concerns outlined in Trump v. Mazars USA, 

LLP, 140 S. Ct. 2019, 2035 (2020), and Youngstown 

“necessarily have less traction” and “less salience” 

especially because the executive and legislative 

branches here are in agreement. Pet. App. 59a. This 

Court should therefore either deny certiorari or 

summarily affirm the Circuit Court’s decision,

clarifying this framework with the arguments 

presented here by Amici.

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The remainder of this Brief will explain why

Petitioner’s claim regarding the presidential 

communications privilege is both contrary to the 

express will of Congress—through its passage of the 

Presidential and Federal Records Act Amendments of 

2014, Pub. L. 113-187—and unsupported by the 

Constitution, rendering it a nullity and leaving 

Petitioner no chance—let alone a likely chance—of 

success on the merits.

As an initial note, however, it is important for 

Amici to clarify the scope of their argument. They do 

not address whether the Select Committee has 

demonstrated an overriding interest, or even whether

the Select Committee’s requests are viable. These are 

questions better addressed by Respondents and 

perhaps other amici curiae, to the extent that they 

need to be answered at all. While Amici agree that the 

Select Committee’s requests are viable and that the 

Select Committee has demonstrated an overriding 

interest sufficient to overcome an invocation of the 

presidential communications privilege, they maintain

that the Court does not need to even address the 

question of balancing the interests, because Petitioner 

simply lacks the authority to claim any privilege that 

President Biden has waived. Put another way, “The 

Select Committee maintains, for preservation 

purposes, that the Constitution and the PRA foreclose 

a former President from asserting executive privilege 

over the disagreement of the incumbent President, 

and foreclose a claim of executive privilege,” Resps. 

Thompson & Select Comm. C.A. Br. at 41 n.51; that 

argument is the almost total focus of this Brief, even 

though the Circuit Court declined to reach it. See Pet. 

App. 40a (“[W]e need not conclusively resolve whether 

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and to what extent a court could second guess the 

sitting President’s judgment that it is not in the 

interests of the United States to invoke privilege.”).

II. PETITIONER’S CLAIM IS INCOMPATIBLE 

WITH THE PRA 

 

When the PRA was initially passed in 1978, it 

remained silent on the question of the interplay 

between a former President and an incumbent 

President in the context of a request for former 

Presidential records. Nixon v. GSA had just been 

decided the previous year, and the parameters of a 

hypothetical meritorious claim of a former President 

were unknown. Accordingly, Presidents were left to 

their own devices to answer this question, and they 

did so in a series of Executive Orders which ranged 

from “the Archivist shall not permit access to the 

records by a requester unless and until the incumbent 

President advises the Archivist that the former 

President and the incumbent President agree to 

authorize access to the records,” Exec. Order 13233 

§ 3(d)(1)(ii), to “the Archivist shall abide by any 

instructions given him by the incumbent President or 

his designee,” Exec. Order 13489 § 4(b). Had this case 

arisen in 2004, former President Trump’s claim would 

have been classified into Justice Jackson’s zone of 

twilight, if not the first category, because there were 

insufficient clues to allow a court to ascertain the will 

of Congress. However, in 2014, Congress amended the 

PRA to permanently and unequivocally give the 

incumbent President the final say. See 44 U.S.C. 

§ 2208(c)(2)(C) (“If the incumbent President 

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determines not to uphold the claim of privilege 

asserted by the former President, . . . the Archivist 

shall release the Presidential record subject to the 

claim at the end of the 90-day period beginning on the 

date on which the Archivist received notification of the 

claim.”). Simply put, Congress passed a statute which 

superseded the relevant Executive Orders: a 

phenomenon that courts have uniformly recognized 

since the Court’s holding in Little v. Barreme in 1804. 

6 U.S. 170, 179 (1804); accord Marks v. CIA, 590 F.2d 

997, 1003 (D.C. Cir. 1978) (“Of course, an executive 

order cannot supersede a statute.”). And, of course, 

the “cardinal canon” of statutory interpretation is that 

“courts must presume that a legislature says in a 

statute what it means and means in a statute what it 

says there,” Conn. Nat’l Bank v. Germain, 503 U.S. 

249, 253–54 (1992), so there can be no question that 

this statute was an unambiguous reflection of the will 

of Congress.

Moreover, the Court must presume that when 

Congress amended the PRA, it did so with knowledge 

of the current prevailing legal interpretations. Merrill 

Lynch v. Dabit, 547 U.S. 71, 85–86 (2006); Goodyear 

Atomic Corp. v. Miller, 486 U.S. 174, 184–85 (1988);

Cannon v. Univ. of Chicago, 441 U.S. 677, 698–99 

(1979). Accordingly, when a new statute changes a 

standard or a process, the Court must presume that 

Congress intended to do so. In this case, Congress 

clearly meant to supersede all the relevant portions of

prior Executive Orders, including Executive Order 

13489, and so any questions about whether or not that 

or any other Order would support Petitioner’s claims

become academic, notwithstanding the fact that the 

parties all appear to take it for granted that Executive 

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Order 13489 still remains in force in its entirety. 

Whatever Congressional silence allowed the President 

to establish the terms of this relationship and bring 

disputes like this one into the zone of twilight was 

irretrievably broken when President Obama signed 

Pub. L. 113-187, and the Court need not spend any 

significant time or energy considering that question.

Before completing this discussion of the PRA, it 

is important to briefly address another provision 

which could conceivably be considered to implicitly 

support Petitioner’s claim, but which does not actually 

do so. The PRA makes mention twice of the potential 

for a former President to file a lawsuit to prevent the 

disclosure of information, as former President Trump 

did in this case. First the law states that the U.S. 

District Court for the District of Columbia “shall have 

jurisdiction over any action initiated by the former 

President asserting that a determination made by the 

Archivist violates the former President’s rights or 

privileges,” 44 U.S.C. § 2204(e), and it then explicitly 

incorporates this possibility into the timeline the 

process may take, see id. § 2208(c)(2)(C) (directing the 

Archivist to release information “unless otherwise 

directed by a court order in an action initiated by the 

former President under section 2204(e) of this title or 

by a court order in another action in any Federal 

court”). However, a statutory provision merely 

providing for the possibility of a lawsuit cannot be 

read to imply that any such lawsuit would be 

meritorious, and the Court should not read into these 

provisions an implicit recognition that such a valid 

claim would exist.

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As noted above, the PRA was written one year 

after Nixon v. GSA was decided by this Court. In that 

case, the Court allowed for the possibility that a 

former President “may legitimately assert the 

Presidential privilege,” 433 U.S. at 449 (emphasis 

added), but gave no indication of what such a 

legitimate assertion would look like. It is no surprise, 

then, that Congress incorporated this hypothetical 

possibility into the PRA a year later, but there is no 

support in either the statute itself or the legislative 

history that any Member of Congress held any belief 

that such a case would be meritorious. Justice Scalia 

rather colorfully characterized this phenomenon as 

“[M]embers of Congress . . . need have nothing in mind 

in order for their votes to be both lawful and effective.”

Pa. v. Union Gas Co., 491 U.S. 1, 30 (1989) (Scalia, J., 

partially dissenting). When Congress amended the 

PRA in 2014, it simply incorporated a reference to the 

existing provision into the new framework, and there 

is no reason to believe that any Member of Congress 

harbored any belief that such a claim would be 

meritorious that time either. At most, Congress can be 

understood to simply believe that “those who see in 

disclosure a threat to the privilege must be given a 

meaningful opportunity to contest disclosure on that 

basis,” Nixon v. Freeman, 670 F.2d 346, 359 (D.C. Cir. 

1982). The Court should accordingly read these 

provisions as what they are on their face: an allowance 

that the Supreme Court stated in 1977 that a former 

President might sue, not that he would ever win.

 

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III. PETITIONER LACKS THE 

CONSTITUTIONAL AUTHORITY TO 

ASSERT ANY CONSTITUTIONAL 

PRIVILEGE 

Petitioner’s entire case hangs on the Court’s 

interpretation of Nixon v. GSA. That case, however, 

does not actually support Petitioner’s position, for two 

reasons. First, as noted above, it is a product of its 

time, and to the extent that it stated that a former 

President still retained a residual privilege, it should 

be read to hold that a former President still retained 

a residual privilege in 1977 before Congress 

unequivocally made its will known in 2014. Second, it 

is not accurate to read Nixon v. GSA to mean that, 

even in 1977, a former President held a residual 

privilege personally that he could assert over the 

incumbent President’s objection in a specific dispute 

over specific records. A better reading would be an

interpretation in which the Court is understood to 

merely have held that the presidential 

communications privilege still protects information 

created by previous administrations—as opposed to, 

for instance, an incumbent President being unable to 

assert the privilege to protect records created by his 

predecessor—and that a former President simply had 

standing to assert them if the incumbent President 

remained silent. Therefore, the Court should either 

decline to review this case because of the correct 

decision reached by the lower courts, or, if the Court 

decides to grant certiorari, it should hold that Nixon 

v. GSA is only loosely applicable to the instant case, 

and that, to the extent it is applicable, it supports 

Respondents. A further discussion of that case follows.

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A. NIXON V. GSA WAS DECIDED IN A 

SIGNIFICANTLY DIFFERENT 

CONTEXT 

 

It is important to note that Nixon v. GSA was a 

facial challenge to the PRA’s predecessor statute, 

specifically the provision directing the GSA 

Administrator to promulgate regulations governing 

the handling of former President Nixon’s papers; the 

Court made clear that its review was limited to the 

facial validity of the statute in question. Nixon v. GSA, 

433 U.S. at 455. Furthermore, much of the Court’s 

analysis hinged on the fact that the records were not

being provided to anyone outside the Executive 

Branch. Id. at 441. Both of these facts counsel against 

a strict application of Nixon v. GSA to the instant 

case. It did not involve a scenario in which a former 

President’s papers were being given to Congress or 

disclosed publicly, and it most importantly did not 

involve the incumbent President’s express agreement 

to such a disclosure.

In Nixon v. GSA, the Court made special note 

of the fact that “[t]he Executive Branch became a 

party to the Act’s regulation when President Ford 

signed the Act into law, and the administration of 

President Carter, acting through the Solicitor 

General, vigorously supports affirmance of the 

District Court’s judgment sustaining its 

constitutionality.” Id. However, legally speaking, 

supporting a statute’s constitutionality is not the 

same as expressly waiving a privilege, and neither 

former President Ford’s signing of the statute nor 

then-incumbent President Carter’s support of the 

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statute are comparable to President Biden’s express 

direction to the Archivist to release the relevant 

records. Supporting a statute generally is a policy 

decision, while expressly waiving a privilege is a 

legally binding decision.

“[T]he privilege of confidentiality of 

Presidential communications derives from the 

supremacy of the Executive Branch within its 

assigned area of constitutional responsibilities.” Id. at 

447. It is, however, just a privilege, and it follows the 

same rules of any other privilege; most importantly, 

once it is expressly waived, it no longer applies.

Simply put, once a privilege is expressly waived by the 

party with the authority to do so, the information in 

question cannot be withheld. For instance, it is wellestablished that if a client authorizes an attorney to

release information which would otherwise be 

protected by the attorney-client privilege, the attorney 

may not cite the attorney-client privilege to withhold 

the information. See generally Wi-LAN, Inc. v. 

Kilpatrick Townsend & Stockton LLP, 684 F.3d 1364, 

1370 (Fed. Cir. 2012) (voluntary consent constitutes 

express waiver of attorney-client privilege); In re Von 

Bulow, 828 F.2d 94, 101 (2d Cir. 1987) (“Of course, the 

privilege belongs solely to the client and may only be 

waived by him. An attorney may not waive the 

privilege without his client’s consent.”).

The question then becomes, who is the party 

with the authority to waive the presidential 

communications privilege? Generally, a 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 

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advice. A patient benefits from the psychotherapistpatient 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.” 433 U.S. at 449. In other 

words, it is a Governmental privilege, not a personal 

privilege.

It naturally follows, then, that because the 

presidential communications privilege is a 

Governmental privilege, it can only be expressly 

waived by a representative of the Government. 

Therefore, even if it may be asserted by a former 

President, it can be waived by the incumbent 

President, and that waiver means that the 

information in question cannot be withheld from 

disclosure by any other interested party. Just as a 

former Chief Executive Officer 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, accord Upjohn Co. v. United 

States, 449 U.S. 383, 389–90 (1981), a former

President lacks the legal authority to prohibit an 

Executive Branch official from releasing information 

if the incumbent President expressly waives the 

presidential communications privilege on behalf of the 

Executive Branch.

Amici turn to briefly address what appears to 

be former President Trump’s main complaint: 

“President Biden is attempting to waive the executive 

privilege of his predecessor, without any legal basis 

for doing so. Indeed, the Biden administration does 

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not even attempt to argue that President Trump 

improperly designated the records at issue as being 

protected by executive privilege.” Pet. C.A. Br. at 34.

In making this complaint, Petitioner effectively asks 

this Court to hold that an express waiver of a privilege 

is only valid or legally binding if it is done for the right 

reason, or, e.g., if the holder of the privilege “argue[s] 

that [the predecessor] improperly designated the 

records” in some way. This is, simply put, not how a 

privilege waiver works.

The holder of a privilege may expressly waive 

the protection of that privilege for literally any reason 

whatsoever. In the context of the deliberative process 

privilege, there is even a term for such a waiver: 

discretionary release. As in, the Government’s choice 

to release otherwise privileged information is 

discretionary. Furthermore, with respect to the 

presidential communications privilege in particular, 

Presidents have waived its protection for political 

reasons numerous times. For instance, President 

Nixon withdrew a privilege claim to prevent White 

House staff from testifying before Congress, so that 

the Senate Judiciary Committee would confirm

Richard Kleindienst as Attorney General. Robert C. 

Randolph & Daniel C. Smith, Executive Privilege and 

the Congressional Right of Inquiry, 10 Harv. J. on 

Legis. 621, 649 (1973). President Reagan similarly 

dropped a privilege claim over documents related to 

William Rehnquist’s tenure in the Department of 

Justice so that the Senate Judiciary Committee would 

confirm him as Chief Justice of the Supreme Court. 

Ronald J. Ostrow & David Savage, Senate Panel to 

Receive Rehnquist Documents; Administration Ends 

Impasse on Memos Written as Legal Advisor to Nixon; 

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Scalia Hearings Open, L.A. Times, Aug. 6, 1986, at A1.

In these cases and others, the President simply 

decided it was not worth the political cost to continue 

such battles with Congress, and they undeniably had 

the right to make that determination. Simply put, 

even though Respondents deny that President Biden’s 

decision was “the result of politically motivated 

capitulation by the Executive Branch,” Resps. 

Thompson and Select Comm. Br. at 18, it would make 

no legal difference if it were; such is the nature of a 

privilege waiver.

This question of waiver was not before the 

Nixon v. GSA Court, and so its opinion should not be 

read to counsel otherwise. Moreover, such a reading 

would place Nixon v. GSA directly at odds with the 

Circuit Court’s longstanding precedent, since the 

Circuit Court has held that “the incumbent President 

is not constitutionally obliged to honor [a] former 

President[’s] invocation of executive privilege with 

respect to [the former President’s] papers.” Public 

Citizen, 843 F.2d at 1479. In such a case, where the 

lower courts’ decisions resulted from a 

straightforward—if unnuanced—application of this 

Court’s precedents, certiorari is especially disfavored.

B. NIXON V. GSA IS ABOUT 

PRESERVING PROTECTED STATUS 

 

The Nixon v. GSA Court specifically endorsed 

the position of the U.S. Solicitor General:

Unless he can give his advisers some

assurance of confidentiality, a President 

Case 9:22-cv-81294-AMC Document 35-3 Entered on FLSD Docket 08/29/2022 Page 23 of 29
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could not expect to receive the full and frank 

submissions of facts and opinions upon 

which effective discharge of his duties 

depends. The confidentiality necessary to 

this exchange cannot be measured by the 

few months or years between the 

submission of the information and the end 

of the President’s tenure; the privilege is not 

for the benefit of the President as an 

individual, but for the benefit of the 

Republic. Therefore the privilege survives 

the individual President’s tenure.

Nixon v. GSA, 433 U.S. at 448–49. However, it does 

not necessarily follow that an individual President’s 

ability to unilaterally assert the privilege “survives 

the individual President’s tenure.” In context, this 

opinion is more harmoniously read to say that the 

information protected by the presidential 

communications privilege continues to be protected 

beyond the individual President’s tenure, because, as 

Petitioner argues, “[i]f the privilege that covered one 

administration were to evaporate immediately upon 

the transition to the next, the privilege would be 

rendered all but worthless.” Pet. Br. 23. While the 

“chilling effect” is a controversial topic in 

transparency circles, one cannot deny that current 

jurisprudence fully embraces it, and until that 

changes, this Court can reasonably treat it as a valid 

concern. As such, the Court’s endorsement of the 

Solicitor General’s position on this count was 

unremarkable; it simply held that such information 

could still be protected. This statement, however, 

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carries with it an implicit caveat: the information can 

still be protected by someone with the authority to do 

so. In other words, it can be protected—or waived—by 

the lawful head of the Executive Branch, and nobody 

else.

On this note, it is important to return to the 

relief that Petitioner is ultimately asking this Court 

to grant: he is asking this Court to substitute its own 

judgment for that of the head of a co-equal branch 

regarding whether or not that branch is appropriately 

protecting its interests. This is constitutionally

disfavored, if not outright prohibited. “[E]ach branch 

of the Government has the duty initially to interpret 

the Constitution for itself, and . . . its interpretation of 

its powers is due great respect from the other 

branches.” Nixon v. GSA, 433 U.S. at 442–43 (citing 

United States v. Nixon, 418 U.S. 683, 703 (1974)). 

Regarding the current Executive Branch’s 

“interpretation of its powers,” this Court is required to 

afford it “great respect.” This respect extends to the 

determination of whether or not the public interest is 

served by potentially chilling Government advisors, 

and it extends to the determination of whether or not 

it is bound by the PRA. In order to find that former 

President Trump has any authority to successfully

enforce a presidential communications privilege 

claim, the Court will have to, as noted above, disable 

both the Congress and the incumbent President from 

acting upon the subject. This it should not do. See Pet. 

App. at 23a, 50a–51a, 59a–60a (discussing how courts 

have historically stayed out of these interbranch 

political negotiations); id. at 40a (“A court would be 

hard-pressed under these circumstances to tell the 

President that he has miscalculated the interests of 

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the United States, and to start an interbranch conflict 

that the President and Congress have averted.”).

The Circuit Court declined to further resolve 

this question, however, finding instead that the 

“profound interests in disclosure” given by President 

Biden and the January 6th Committee “far exceed 

[Trump’s] generalized concerns for Executive Branch 

confidentiality.” Id. at 40a. That finding is the correct 

outcome in this case, but Amici believe the same 

reasoning supports this Court either not granting 

certiorari at all, or if it does, establishing that a former 

President is simply not in any position to ever be able 

to second-guess the incumbent President in this way. 

As Judge Chutkan stated in her district court opinion, 

the incumbent President, not a former President, is 

best positioned to make these judgment calls 

regarding the long-term interests of the Executive 

Branch and the balance of interests between 

disclosure, on one hand, and the ability of Executive 

Branch officials to provide full and frank advice, on 

the other. Pet. App. 93a. And despite Petitioner’s 

assertion that a former President’s power “exists in 

perpetuity,” Judge Chutkan agreed that “Presidents 

are not kings, and Plaintiff is not President,” and that

he is “no longer situated to protect executive branch 

interests” in the way President Biden is. Id. at 99a.

Importantly, he also “no longer remains subject to 

political checks against potential abuse of that power.”

Id. at 100a. The Circuit Court’s opinion acknowledged

this aspect of Nixon, 443 U.S. at 448, and emphasized

the Constitution’s clarity regarding one person

holding this executive power at a time. Pet. App. 41a.

As such, there is simply no basis for allowing a former 

President to assert this kind of Governmental 

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privilege at all. See id. at 53a–55a (discussing the 

interests and political checks involved which better 

situate the incumbent to make these decisions and, 

where necessary, be held accountable). 

A final point worth reiterating here is that 

former President Trump appears to be under the 

belief that executive privilege exists in part for the 

purpose of preventing a future President from 

releasing information for “political” purposes. As 

discussed above, an incumbent President can waive 

this privilege for virtually any reason, regardless of 

whether that reason is arguably “political” or not. Yet

he argues that the disagreement in this case:

highlights the importance of executive 

privilege and the ability of Presidents and 

their advisers to reliably make and receive 

full and frank advice, without concern that 

communications will be publicly released to 

meet a political objective.

Pet. Emerg. Appl. Stay at 9. This argument 

fundamentally misunderstands the purpose of the 

privilege in this situation where the incumbent 

President has waived the privilege—the privilege is 

designed to protect against cross-branch overreach or 

interference, not against a President’s own successor 

in the Executive Branch deciding to release 

information, whatever the reason is. The purpose of 

the privilege has never been to insulate a former 

President from discretionary decisions of a successor 

President, the new leader of the same branch.

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By the same token, any traditional norms

whereby an incumbent might defer to a former 

President regarding control of the former President’s 

records is based on just that—a norm deriving from, 

e.g., respect for the office, as a professional courtesy, 

or, as this Court has recognized, because doing so 

maintains the balance between the incumbent 

President and future Presidents. See Nixon v. GSA, 

433 U.S. at 448. But it is not because the former 

President gets any binding say in what happens once 

he leaves office. When Congress seeks documents and 

the sitting President decides that the interests of 

national security and accountability warrant sharing 

Executive Branch documents, that is the end of the 

story. Every assertion by Petitioner overlooking this 

cross-branch agreement is ignoring how the 

agreement neutralizes any protective function of the 

privilege.

CONCLUSION 

 

“With all its defects, delays and inconveniences, 

men have discovered no technique for long preserving 

free government except that the Executive be under 

the law.” Youngstown, 343 U.S. at 655 (Jackson, J., 

concurring). If a requirement for a free government is 

that the Executive be under the law, a former

Executive can ask no more, yet that is what former 

President Trump requests. Allowing a former 

President to override a current President on any 

question is undemocratic and threatens to create a 

“shadow President,” a concept fundamentally foreign 

to the U.S. Constitution. For the reasons provided 

above, former President Trump has no legal basis to 

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prevail in this suit, and the Court should accordingly 

deny certiorari or summarily affirm the Circuit 

Court’s decision.

LOUIS CLARK KELLY MCCLANAHAN

GOVERNMENT Counsel of Record

ACCOUNTABILITY PROJECT NATIONAL SECURITY

1612 K St., NW COUNSELORS

Suite 1100 4702 Levada Terrace

Washington, DC 20006 Rockville, MD 20853

202-441-0333 301-728-5908

LouisC@whistleblower.org Kel@NationalSecurityLaw.org

Counsel for Amici Curiae

January 5, 2022

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