This is a risky move from President Joe Biden, which could come back to haunt him and future presidents in the hyperpartisan world Washington politics.
Democrat Biden agreed to a request by Congress for sensitive information about the actions of Donald Trump and his aides in the Jan. 6 rebellion, although the former president claimed that executive privilege protects the information.
Biden’s move is not the last word. Republican Trump said he would challenge the requests. A lengthy legal battle will likely ensue over the information. Ex-presidents can enjoy executive privilege in certain cases, according to courts.
The legal world’s playbook is very different from that of the political world. Saikrishna Prakash is a University of Virginia law professor who studies presidential powers.
Biden’s decision to not block Congress from accessing the information is a challenge to a tried norm. This is one in which presidents have the right to keep secret records of their terms in office, both mundane or highly sensitive, for at least five years and sometimes much longer. This applies to Trump, Biden, and any future presidents.
Executive privilege, although not explicitly stated in the Constitution is designed to allow a president to seek candid counsel from his advisors without fear of immediate disclosure. It also protects his confidential communications regarding official responsibilities.
However, this privilege is subject to limitations in exceptional situations. This was evident during the Watergate scandal when the Supreme Court ruled it could not be used as a shield for the release of secret Oval Office tapes in criminal investigations and after the September 11 terrorist attacks.
According to Biden’s White House counsel, Jan. 6’s insurrection is part of those ranks. He wrote to the Archivist of America, the keeper of records. In an attempt to prevent Biden’s election win being certified, a mob of Trump supporters attacked the building.
Jen Psaki, White House Press Secretary, stated that the congressional panel was investigating “a dark day” in democracy. She said the ex-president tried to undermine our Constitution, democratic processes, and the Constitution.
Some experts stated that the argument that the attack justified the extraordinary release should be used to protect executive privilege for future presidencies.
Jonathan Shaub is an assistant professor of Law at the University of Kentucky J. David Rosenberg College of Law. He was a former attorney-adviser for the Office of Legal Counsel under the Obama administration.
These other exceptions were made in a pre-Trump world where there were clear norms and customs, and generally one set of facts. A large portion of the country still believes Trump’s lies about him being the rightful winner of 2020. Even though there is no evidence to support these claims, Trump and his associates have gone to great lengths in trying to remake the events of January 6 to portray the rioters as warrior patriots.
If history is any indication, once the door is open to reviewing historical presidential records, future Congresses or presidents may swing it further as politics dictate.
This is the path that Washington norms follow in an increasingly obnoxious capital. The Democrats used the “nuclear option” to end the filibuster, which would have required 60 votes to pass most presidential nominations and appointments. However, they kept it in place for legislation and Supreme Court selections. When Republicans gained control of Washington in 2017, they took this tactic to the next level and placed three justices on high court by simple majority votes during the Trump years.
White House documents are often kept private by presidents, for their own protection and that of their predecessors. However, a White House decision to deny the congressional request to see records on Trump’s activities may anger Democratic legislators at a time when Biden is in need of their support to move his agenda forward.
The congressional committee requested the documents as part of an extensive and contentious investigation into the Jan.6 mob’s ability to enter the Capitol and disrupt Biden’s presidential win in the worst assault on Congress in 200 years. The attack saw more than 630 criminal defendants, making it the largest U.S. prosecution.
As they attempt to understand how the insurrection may have occurred, thousands of documents were sought by the Trump administration. Many of these requests were directed to the National Archives where Trump’s correspondence from his time as an officeholder is kept.
An executive order on presidential records states that the archivist of the United States must “abide by all instructions given to him by the incumbent President, or his designee, unless directed otherwise by a final court decision.”
In a letter to the Archivist, White House counsel Dana Remus stated that Congress is looking into an attack on our Constitution and democratic institution. “Constitutional protections of executive privilege shouldn’t be used to shield from Congress and the public information that clearly and apparently attempts to subvert the Constitution.”
Trump replied to the National Archives with his own letter, in which he asserted privilege over almost 50 documents.
Trump wrote that he was referring to the Presidential Records Act and that he made a protective assertion of constitutionally-based privilege with regard to any additional records. He also stated that if the committee requests other information he considers confidential, ‘I will take all necessary steps to defend the Office of the Presidency.