Trump formally asserts executive privilege in legal fight over Kennedy Center’s closure – USFTB

Washington — President Trump has formally invoked executive privilege to shield certain records from Democratic Rep. Joyce Beatty of Ohio as part of her ongoing legal challenge to the president’s effort to temporarily shutter the Kennedy Center for renovations. 

White House deputy counsel Joshua Hoyt informed a federal judge on Wednesday of Mr. Trump’s formal assertion of the presidential communications privilege, a form of executive privilege. Hoyt said it covers information, documents or communications between Mr. Trump, his advisers and Kennedy Center employees about the president’s duties and “the effective functioning” of the performing arts institution.

Hoyt argued that because the president appoints members of the Kennedy Center’s board and a related Advisory Committee on the Arts, he must “familiarize himself” with the institution’s management, operations, fundraising efforts and planned activities.

“I believe that, without the protection of the presidential communications privilege over the communications described above, presidential advisors and their staff members would be chilled from gathering relevant information, exploring alternatives, and providing fully informed recommendations regarding the performance of the President’s duties,” the White House lawyer wrote in a declaration.

In a separate filing, Justice Department lawyers accused Beatty of conducting a “fishing expedition” that raises separation-of-powers concerns.

“Even though the President’s statutory duties and the Chairman’s trust duties overlap, what matters for the purpose of executive privilege is that Plaintiff seeks information, documents, and communications concerning the President’s actions in his official capacity,” they argued.

Executive privilege is not absolute and can be overcome by an adequate showing of need for the information at issue.

The Kennedy Center’s board of trustees, composed of Trump administration officials and the president’s allies, elected Mr. Trump as its chairman last year, making him the first sitting president to hold the role. His effort to invoke executive privilege to shield records relating to the Kennedy Center raises new and untested questions of whether the protection extends to the president’s actions as chairman of the performing arts institution, which was created by Congress in 1958 and is funded through a mix of federal dollars, ticket revenue and private donations.

The president asserted executive privilege over a number of records relating to his attempt to close the Kennedy Center for two years to allow for renovations, its financial condition, the effort to add Mr. Trump’s name to the building’s facade and the possibility that the Kennedy Center could be demolished.

Concerns that the building could be razed emerged after Mr. Trump said last month that the Kennedy Center will close and “end up being ripped down” if he and his administration did not get recognition for raising money and spearheading repairs to the institution.

Mr. Trump was also photographed on Air Force One looking at a placard that appeared to say “Kennedy Center Demolished.”

The brewing fight over executive privilege comes as part of a lawsuit Beatty filed in December challenging the board’s move to change the center’s name to the Donald J. Trump and The John F. Kennedy Memorial Center for the Performing Arts and shutter the institution for two years for renovations. Beatty is an ex officio member of the Kennedy Center’s Board of Trustees.

In May, U.S. District Judge Christopher Cooper blocked the center’s closure and ordered Mr. Trump’s name to be removed from the building’s facade. Construction crews stripped the president’s name from the exterior in June, but the front portico of the building has since been covered by a tarp, concealing most of its name. 

Cooper has also allowed Beatty to collect information from the Kennedy Center about the decision to close the main building and any potential demolition, and to take depositions, a process known as discovery.

But Beatty’s lawyers said that the Justice Department sought to block her inquiries about any input and instructions Kennedy Center staff received from Mr. Trump in his capacity as the board’s chair and refused to turn over any documents related to those communications.

They accused the Justice Department of “improperly asserting a blanket privilege in an unprecedented fashion” and asked Cooper to order the Kennedy Center to turn over the material Beatty is seeking.

In response to Beatty’s inquiries, Justice Department lawyers said late last month that “to the extent the discovery requests seek communications involving the President or White House personnel, they are inappropriate because they may have the effect of seeking information protected by the presidential communications privilege.”

During a deposition with Matthew Floca, executive director and chief operating officer of the Kennedy Center, last week, a Justice Department lawyer repeatedly instructed Floca not to answer certain questions from one of Beatty’s lawyers based on a protective assertion of executive privilege.