The day after a federal judge ordered the Kennedy Center board to remove President Donald Trump’s name from the building, Commerce Secretary Howard Lutnick’s phone started blowing up.
Matt Floca, the center’s operator, sent 11 straight texts to Lutnick, Trump’s go-between on one of his second-term obsessions: a gilded redesign of the performing arts center. The conversation ballooned into a three-month-long, 180-message exchange between the two men that is now at the heart of a legal battle over the Kennedy Center’s future — and a prelude to what will likely be a defining legal and political fight over the next two years.
When preservation groups suing over the Kennedy Center demanded to see more details about what Lutnick and Floca had discussed, White House lawyers intervened, invoking executive privilege because the messages, they said, “reflect advice from the president” or the deliberations of his close advisers. Now a judge must decide whether to pierce Trump’s demand for secrecy in order to decide the Kennedy Center’s fate.
Trump has already tested the bounds of executive privilege, and is all but certain to push the envelope even further as he tries to fend off congressional Democrats’ aggressive oversight agenda for the next two years. How the courts resolve those disputes will shape the future of the Kennedy Center, the future of Trump’s second term and even the future of the presidency.
“They could really damage some of their institutional sort of positions that they might want to use against Congress if they try to litigate them,” said Jonathan Shaub, a member of the White House Counsel’s office under President Joe Biden and author of a forthcoming book on executive privilege. “They've got to do some real thinking. … It doesn't seem like there has been that kind of larger strategic thinking yet.”
Executive privilege isn’t mentioned in the Constitution, but the Supreme Court has clearly established that presidents’ private discussions with advisers must be able to stay secret — unless other weighty interests justify overriding that confidentiality. It’s most commonly invoked in matters of national security or foreign affairs, where courts are especially reluctant to encroach on the president’s need for private discussions and advice.
But Trump’s decision to take a direct role in the redesign of the Kennedy Center, as well as a Washington, D.C. golf course, are stretching the boundaries of presidential secrecy in new ways. The Justice Department has floated the prospect of executive privilege assertions in cases challenging Trump’s effort to punish law firms, authorize military strikes on alleged drug boats and penalize the BBC for a piece about the Jan. 6 attack on the Capitol. He tried unsuccessfully to assert it while he was out of office, to ward off Congress’ Jan. 6 investigation.
And legal battles over executive privilege are poised to explode next year, when a Democratic Congress pursues investigations into Trump, along with his appointees, family members and allies. Democrats are mindful that Trump wielded privilege effectively in his first term, stymying their most far-reaching probes for years.
That history is coloring their thinking as they prepare an onslaught of subpoenas to unearth the details of Trump’s most controversial second-term decisions. House Democrats are already discussing an investigative battle plan that factors in Trump’s tendency to stonewall, according to one person with knowledge of the conversations, granted anonymity to share private discussions. Democrats will have to start the process quickly if they have any chance of winning a dragged-out privilege fight
“The House must have the ability to prevail when the law and facts are on its side and overcome what are likely to be extremely broad invocations of executive privilege,” said Thomas Spulak, who was a top lawyer for the House in the 1990s.
Trump’s proclivity to fight every battle on every front — and his time-honored tactic of running out the clock on his investigators — could force courts, including the Supreme Court, to develop new, permanent rules for executive privilege. And though prior administrations were concerned about protecting the institution of the presidency, Trump has made clear he is willing to push his battles to the limit, even if it results in legal precedents that hamstring his successors.
“If they're really planning on taking the more extreme stance in litigation and pushing it to the appellate courts, I think there's a very real chance that they get adverse appellate decisions,” said Shaub, now a law professor at the University of Kentucky.
Some legal experts say the new Democratic majority might be able to work around these protracted legal battles by targeting people and organizations outside the administration who have fewer claims to government secrecy.
“If they're asking for documents or information from third parties who are private parties, even if the White House asserts executive privilege, I think that it's going to be an uphill battle, to say the least, for the White House,” said Jessica Roth, a law professor at Yeshiva University.
But the Justice Department appears ready to fight on that front, too. It recently issued guidance suggesting that the president’s conversations with outside advisers are subject to executive privilege and it has asserted that protection in a suit over the president’s attempts to punish law firms that had worked for Democrats or employed lawyers he saw as his enemies.
On Wednesday — a day after Democrats dominated the midterms — four Justice Department attorneys told U.S. District Judge Amir Ali they plan to make broad claims of executive privilege to try to block access to White House records about negotiations with law firms. A longtime Trump confidant and legal adviser, Boris Epshteyn, shouldn’t have to give testimony in the case or even detail whether he has an attorney-client relationship with Trump or others in the administration, a DOJ attorney argued.
“We shouldn't even be putting third parties in a position where they have to respond,” DOJ lawyer Michael Velchik said. “There are separation of powers concerns when plaintiff seeks to depose or see information from individuals that they allege are close advisers to the president.”
DOJ has also argued to Ali that under a 2004 Supreme Court precedent involving Vice President Dick Cheney’s energy task force, the records and testimony the American Bar Association is seeking in the suit should be sought first from the law firms who negotiated with the administration.
“If they're really planning on taking the more extreme stance in litigation and pushing it to the appellate courts, I think there's a very real chance that they get adverse appellate decisions,” said Shaub, now a law professor at the University of Kentucky.
Democrats are openly telegraphing their targets for aggressive investigations next year that will seek to peer behind the Oval Office curtain. Lawmakers slated to lead those investigations have foreshadowed reviews of his controversial pardons, his family’s business ventures, his role in the Justice Department’s targeting of his political adversaries, his handling of the Epstein files and a slew of other targets.
The balance between the need for secrecy and the needs of investigators has remained ill-defined ever since the Nixon-era Supreme Court enshrined it as a concept. Congress and criminal investigators have tested it repeatedly, but those skirmishes have rarely resulted in the type of sweeping court rulings that set precedents for future disputes.
