WASHINGTON, (AP) — President Joe Biden made a risky decision that could backfire on him — and future presidents — within the hyperpartisan world Washington politics.
Democrat Biden agreed to a request by Congress for sensitive information about the actions of Republican Donald Trump’s aides during Jan. 6 insurrection. However, the former president claimed that executive privilege protects the information.
Biden’s move is not the last word. Trump has stated that he will contest the requests and that a long legal battle is likely. In some cases, former presidents can be granted executive privilege by 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 refusal to block Congress’ request for information challenges a well-established norm. Presidents are entitled to secrecy of records from their term in office, both mundanely and highly sensitive, for at most five years. Sometimes, it can be much longer. It applies to Trump and Biden.
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.
Biden’s White House counsel wrote that the Jan. 6 insurrection belonged to those ranks. 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 looking into the records. “This committee investigates a dark moment in our democracy — an effort to undermine our Constitution, democratic processes by our former president — and this context, I believe, is also important.”
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 era, when there were clear norms and customs and generally one set of facts. Today, the majority of Americans believe Trump’s lies, that he is the rightful 2020 winner, despite the evidence. Trump and his aides have gone to great lengths in trying to change the Jan. 6 events to make the rioters appear to be patriot warriors.
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.
It is a path that Washington norms have been following in this increasingly corrupt 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. The Republicans took this tactic one step further when they gained control of Washington. They placed three justices at the highest court by simple majority votes in 2017 after they won the election.
White House documents can be kept secret by Presidents to preserve their executive privilege. Any White House action to deny the congressional request of records on Trump’s activities may anger Democratic legislators, just as Biden needs their support in order to advance his agenda.
The congressional committee requested the documents as part of an extensive and arduous investigation into how the mob managed to penetrate the Capitol and disrupt Biden’s presidential win in the worst assault on Congress in 200 years. The attack saw more than 630 criminal charges brought against them, making it the largest prosecution in American history.
The Trump administration has been asked for thousands of documents to help determine how the insurrection may have occurred. Many of these requests were sent to the National Archives where Trump’s correspondence was kept during his tenure.
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 addressed to the archivist, White House counsel Dana Remus said that Congress is currently examining an attack on our Constitution. “The Constitution’s executive privilege protections should not be used to protect Congress and the public from information that clearly and apparently attempts to subvert the Constitution.”
Trump wrote his own response to the National Archives, formally asserting privilege over 50 documents.
Trump wrote that he was defending the Presidential Records Act and asserting constitutionally-based privilege in regard to all additional records. Trump stated that he would take all appropriate and necessary steps to defend the Office of the Presidency if the committee requests any additional information he considers confidential.