Can We Give the President Some Privacy?

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If the president of the United States were to stand at the sink washing dinner dishes and complain vehemently to his wife about his day at work, would the president’s moanings be considered part of a private conversation between spouses or an official presidential communication protected under “presumptive privilege”? While importantly holding that the president is not above the law as a citizen and not absolutely immune from judicial subpoenas, the Court in United States v. Nixon recognized that the president’s confidential conversations and correspondences are protected under a heightened standard of presumptive privilege, grounded in the separation of powers of the Constitution. United States v. Nixon, 418 U. S., at 708. 

The Supreme Court’s notion of presumptive privilege for presidential communications raises the fundamental question increasingly at issue in modern rulings of the Court that focus on the extent of executive privilege and separation of powers concerns between the three branches of U.S. government: where is the line, if it exists at all, between the president’s “official” and private acts? For instance, the recent Supreme Court cases Trump v. Mazars USA, LLP (2020) and Trump v. United States (2024) seem unable to articulate with clarity where the line at which the “outer perimeter” of the president’s “official acts” can actually be drawn. Trump v. United States, 603 U.S. 593 (2024). Rather, Chief Justice John Roberts, writing for the Court in both cases, takes the stance that “there is not always a clear line between [the president’s] personal and official affairs.” Trump v. Mazars USA, LLP, 591 U. S., at 868. According to the Court’s opinion in Trump v. United States, whether an act is “official” is, apparently, a question best left for the factfinding district courts. 

However, the Court’s increasingly blurry distinction between the president’s public and private life—“official” and “unofficial” acts in the parlance of Trump v. United States—simultaneously poses two dangers. The first danger is to the rule of law, since the Court’s expansive notion of executive privilege risks overly insulating the president from judicial and congressional investigation into and criminal prosecution for potential offenses that he might commit in his capacity as a private citizen and for which he ought to be held accountable. The second danger is to the president’s fundamental individual right to privacy as a citizen, the existence of which some legal scholars have questioned, based on Article II of the Constitution vesting the executive power in the president during the time he holds office. However, the presidency cannot not remove the president’s status as an individual citizen with the right to choose to keep private his purely personal affairs, like tax filings or medical records, provided they are not subject to a congressional investigation with a valid legislative purpose. 

For example, while the president’s health status is certainly relevant to his fitness to be president—arguably especially in the cases of recent octogenarians holding the office—it is difficult to imagine Congress impeaching a president for becoming medically incapable of leading. Declining health hardly falls under the impeachable categories of “Treason, Bribery, or other high crimes and misdemeanors.” U.S. Const. art. II, § 4. In such a case, rather, the American people would have to trust in the mechanisms under the Twenty-Fifth Amendment for the president to voluntarily transfer power to his Vice President, or to have his Vice President and advisors declare his inability for him. U.S. Const. amend. XXV, §§ 3–4. Such a distinction in the procedure for medical incapacity handled entirely within the executive branch suggests that there is a meaningful distinction between at least some of the president’s public and private life. 

After all, outside of executive privilege, the president, like any other U.S. citizen, has a basic right to privacy under the Constitution that Congress should respect. John Marshall articulated as early as the treason trial of Aaron Burr that “the law does not discriminate between the president and a private citizen” when it comes to congressional subpoenas. United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807). A private citizen, as the Court has affirmed in numerous cases (see Kilbourn v. Thompson, Interstate Commerce Commission v. Brimson, Boyd v. United States, and Harriman v. Interstate Commerce Commission), is entitled to “constitutional liberty and security” that “forbid all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of his life.” Interstate Commerce Commission v. Brimson, 154 U. S. 447. It is also clear that former presidents have understood that they have private rights when it comes to congressional subpoenas. For example, during the Whitewater controversy, even though he was ultimately unsuccessful in resisting subpoenas, President Clinton’s personal lawyers defended resisting the subpoena for a White House attorney’s notes on the grounds that they were protected by the common-law attorney-client privilege afforded to the president as an individual citizen. 

Therefore, in the context of Trump v. Mazars, in which Congress subpoenaed personal financial records of Trump, his family, and his private businesses in April 2019, the Court was correct in determining that the subpoenas were unconstitutional. However, the case should have been decided not on the basis of separation of powers concerns, but solely on the basis of the president’s privacy and the lack of valid legislative purpose for President Trump’s private financial information. The other three parts of the test outlined in Mazars—taking into consideration the weight of involving the president in a congressional investigation, narrowly tailoring the subpoena for the sake of preventing interbranch friction, and considering the specific burdens imposed on the president’s time and attention—all have remarkably little relevance to the case before the Court. Even President Trump’s lawyers admitted that the subpoenas’ burdens on the president “never mattered much to begin with,” because they were made to the private banks and accountants employed by President Trump rather than to the president himself. Therefore, contrary to the Supreme Court’s ultimate reasoning, the Court of Appeals in Mazars seems correct in recognizing that “this case does not concern separation of powers.” 943 F. 3d, at 669. It was only in failing to properly account for Congress’s lack of valid legislative purpose into the personal affairs of Trump as a private citizen that the lower court wrongly upheld the congressional subpoenas for President Trump’s financial records. 

To be sure, the Necessary and Proper Clause in Article I of the Constitution gives Congress an implied power “to secure needed information” to write legislation. McGrain v. Daugherty, 273 U.S. 135, 161 (1927). This power is “broad” and “indispensable.” Watkins v. United States, 354 U.S. 178, 187, 215 (1957). However, even before Mazars, the Court was clear that all subpoenas must have a “valid legislative purpose.” Quinn v. United States, 349 U.S. 155, 161 (1955). Congress’s supposed legislative purpose for the subpoena of the Trump family’s private financial records—considering revisions to ethics-in-government laws—does not need to be evaluated by a four-part test for it to be clear that ethics-in-government laws have little to do with one family’s private business records. Absent a valid legislative purpose, as Justice Clarence Thomas articulates in his dissent in Mazars, “Congress has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not.” Trump v. Mazars USA, LLP, 591 U.S. 848 (2020) (Thomas, J., dissenting). Thus, the Court should have had no reason to rely on separation of powers when it came to deciding a case exclusively concerning the president’s personal affairs. 

Nevertheless, beginning by holding in Mazars that the lower courts did not duly consider “separation of powers concerns” because the president is “the only person who alone composes a branch of government,” today’s Court seems to suggest that every moment the president lives and breathes, he might very well be engaged in official communications and acts of the executive branch. Trump v. Mazars USA, LLP, 591 U. S., at 848, 868. By adding to the number of Supreme Court cases during President Trump’s time in office that have been decided on the basis of “separation of powers,” Mazars likely helped usher in the Court’s ruling in Trump v. United States (2024). In the latter case, the Court—exercising a growing vision of unitary executive theory derived from Article II, Section 2, Cause 1 of the Constitution—expanded presidential immunity from, under Nixon v. Fitzgerald (1982), having absolute immunity from civil liability, to also giving the president at least presumptive immunity from criminal prosecution for all acts found to be within the “outer perimeter” of his “official” responsibilities. 

Despite Chief Justice Roberts’s repeated insistence in Trump v. United States that “not everything the President does is official,” the Court’s difficulty in discerning where the president’s presidential acts end and his personal decisions begin poses a real threat of effectively insulating the president from being checked by the Supreme Court and from being subject to congressional subpoenas when Congress has a valid legislative purpose. Thus, in Trump v. Mazars, the Court erred in its 7-2 decision creating a four-part balancing test with separation-of-powers carveouts for the president that ultimately bolstered the Court’s theory of executive immunity in Trump v. United States. Instead, in Mazars, the Court should have stuck to the principle that, when it comes to congressional oversight, the law applies to the president in the same way it does to every citizen: the president’s right to privacy on its own still exists, and it ought to protect his private communications from unjustified congressional subpoenas.

Cate Gutowski is a senior at Brown University studying English and Political Science. She is a Managing Editor and guest writer for the Brown Undergraduate Law Review and can be contacted at catherine_gutowski@brown.edu. 

Kelly Ding is a sophomore at Brown University studying International and Public Affairs. She is a Blog Editor for the Brown Undergraduate Law Review and can be contacted at kelly_ding@brown.edu. 

Nik Greborunis is a junior at Brown University studying Political Science. He is a Senior Editor for the Brown Undergraduate Law Review and can be contacted at nikolas_greborunis@brown.edu