Does a president have the right to withhold privileged documents from the

Former President Donald Trump’s attorneys say executive privilege should protect records seized this month from his residence in Florida and earlier this year by the FBI, as the legal battle over who should control the Trump presidency’s records continues. 

Trump’s attorneys, who have requested that a “special master” review documents taken in the Aug. 8 search, argued in a filing Monday that documents from Trump’s presidency are “presumptively privileged.” Trump has been trying to shield these and other records from the FBI. A May letter from the acting U.S. archivist to Trump’s attorneys released Tuesday shows Trump’s team attempted to claim a “protective assertion of executive privilege” so that the National Archives and Records Administration (NARA) wouldn’t hand the FBI records he had voluntarily returned earlier this year. 

The FBI search of Trump’s Mar-a-Lago residence, which unearthed 11 sets of classified documents, stemmed from Trump’s failure to give these records to the Archives when he left office or at any time since then when NARA demanded them. 

Not only does the former president want to keep investigators from seeing the records he initially returned to the Archives, but he also wants “privileged” documents back in his custody.

“[T]he FBI, in its now famous raid of Mar-a-Lago, took boxes of privileged ‘attorney-client’ material, and also “executive” privileged material, which they knowingly should not have taken,” he said in a post on Truth Social. “By copy of this TRUTH, I respectfully request that these documents be immediately returned to the location from which they were taken. Thank you!”

But does Trump or any president have the right to withhold material protected by executive privilege from the National Archives — or to retain possession of it? 

What is executive privilege?

Executive privilege is a constitutional doctrine based on the separation of powers. Under this doctrine, the president has the right to shield his deliberations with aides from the congressional and judicial branches in some cases.

But legal experts say Trump’s attorneys will have a hard time arguing that the president’s records should be withheld from the National Archives or the FBI based on executive privilege. 

Limits of executive privilege 

Executive privilege is rooted in the separation of powers of the executive, legislative and judicial branches. NARA is a part of the executive branch, as is the FBI.  A former president can try to assert executive privilege to maintain the privacy of certain records, but those claims may be overruled by the current president. That’s what happened when Trump tried to block the House select Jan. 6 committee from obtaining records held by the Archives. The Biden White House refused to block it, and the Supreme Court determined Trump could not stop it. 

In the 1977 case Nixon v. GSA, the Supreme Court ruled that a former president may not successfully assert executive privilege “against the very executive branch in whose name privilege is invoked,” as the National Archives explained in its May 2022 letter to Trump’s attorney, which became…