The Constitution provides former Presidents with no powers or role, and yet numerous former presidents including Truman and Nixon have asserted executive privilege in order to withhold information from Congress, historians, and the public. The most recent former President, George W. Bush, is likely to make similar assertions based upon his sweeping view of the rights of former Presidents as reflected in his recently revoked Executive Order 13,233, potentially leading to a constitutional collision between the rights of former Presidents and those of Congress. This Article argues that, notwithstanding Nixon v. Administrator of General Services (GSA), former Presidents should retain no right to assert executive privilege based upon the text, structure, and historical context of the Constitution and its antimonarchical premises, as well as the nature of executive privilege when compared to other privileges.
We are informed, that many letters have been written to the members of the federal convention from different quarters, respecting the reports idly circulating, that it is intended to establish a monarchical government, to send for the bishop of Osnaburgh, &c, &c. - to which it has been uniformly answered, "tho' we cannot, affirmatively, tell you what we are doing, we can, negatively, tell you what we are not doing - we never once thought of a king.["]1
The Constitution makes no provision for former Presidents. It vests them with no powers, titles, or role whatsoever; it does not even provide them a pension.2 The founding generation vigorously opposed entrenched power and sought through the Constitution to make clear the President was not a king. And yet after leaving office, several presidents have asserted executive privilege in order to keep information secret from congressional investigations, historians, and the public. President Truman, after he left office, refused to testify before Congress despite a subpoena.3 Though the Constitution does not mention executive privilege, Truman argued that its structure for separation of powers immunized Presidents as well as former Presidents from any obligation to testify.4 President Nixon sought through litigation to keep secret the White House tapes on the grounds that he retained executive privilege under the Constitution even years after he had resigned.5 Though the motives of Truman and Nixon may have varied, their arguments were similar and striking - that former Presidents continue to enjoy some constitutional power after they leave office and can assert a privilege enjoyed by no other private citizen.
This brings us to the most recent former President, George W. Bush, and to an imminent constitutional collision likely to test the power of a former President to assert executive privilege against the power of Congress to investigate. On the one hand, early in his presidency President Bush staked out an aggressive position: that former Presidents enjoy sweeping powers to assert executive privilege, even in the face of a contrary determination by the sitting President. In Executive Order 13,233, he asserted that former Presidents, former Vice Presidents, and their heirs retain absolute veto power over the incumbent President concerning the privilege; if a former President asserts privilege, the incumbent President may not release the information absent court order.6 On the other hand, Congress has conducted numerous investigations into a wide range of allegations involving Bush, former Vice President Cheney, and their aides,7 leading to regular assertions of executive privilege. Both the House and the Senate have made clear they intend to continue many of these investigations and to test these assertions of privilege.8
These two courses are set to collide. In one case, they already have: in 2007 and 2008 a House committee subpoenaed several White House aides, including Harriet Miers and Karl Rove, to testify …