A current President may be all too willing to allow disclosures that may undermine the reputation of a predecessor of the opposing party, and may not be fully aware of why certain documents or materials raise legitimate privilege concerns. This is likely why the Supreme Court, in the one case considering a former President’s privilege, was not willing to dismiss a former President’s claims.

A categorical rule barring former Presidents from asserting the privilege would sweep too broadly, but that is the start, not the end, of the inquiry. Just because the privilege is invoked does not mean it should prevail.

In this case, the legislature’s interest in obtaining the relevant information is quite substantial. Congress is pursuing an investigation of potentially criminal activity, including efforts to encourage (and perhaps incite) violent action at the Capitol and to overturn the results of an election, and such information should help inform questions such as whether Congress should revise the Electoral Count Act, alter its security protocols, or take other measures to prevent a repeat of the events of January 6.

On the other side of the ledger, we have very little, as detailed in Trump’s letter to the National Archives asserting the privilege. Notably absent from the letter is any claim that the documents in question would relate to foreign affairs, national security, or other contexts in which the privilege is at its greatest, Rather, Trump is claiming that the request for documents is overly broad and would infringe upon a President’s ability to seek confidential advice. This is lots of hand waving over weak sauce.