Former Presidents and Executive Privilege

The Constitution provides former Presidents with no powers or role, and yet numerous former presidents have asserted executive privilege in order to withhold information from Congress, historians, and the public. In this Article, Professor Sacharoff argues that former presidents should not retain any power to assert executive privilege.

Sacharoff highlights the extent of this problem--executive privilege has been used as a shield by presidents including Truman, Nixon, and George W. Bush. This article engages the question, largely neglected in legal scholarship to date, of whether such privilege remains in former presidents or transfers to the sitting President. Notwithstanding the decision in Nixon v. Administrator of General Services, Sacharoff concludes that former Presidents should retain no right to assert the privilege, using an analysis 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.