The Oklahoman

Executive privilege move is risky

Trump record turnover could bite Biden later

- Colleen Long and Zeke Miller

WASHINGTON – It’s a risky move by President Joe Biden that could come back to haunt him, and future presidents, in the hyperparti­san world of Washington politics.

Democrat Biden agreed to a request from Congress seeking sensitive informatio­n on the actions of his predecesso­r, Donald Trump, and his aides during the Jan. 6 insurrecti­on, though the former president claims the informatio­n is guarded by executive privilege.

The move by Biden isn’t the final word; Republican Trump says he will challenge the requests, and a lengthy legal battle is likely to ensue. Courts have ruled that former presidents are afforded executive privilege in some cases.

But the playbook for the legal world is different from the political world. In the political world, “every time a president does something controvers­ial, it becomes a building block for future presidents,” said Saikrishna Prakash, a law professor at the University of Virginia who studies presidenti­al powers.

Biden’s decision not to block the informatio­n sought by Congress challenges a tested norm in which presidents enjoy the secrecy of records of their own terms in office, mundane and highly sensitive, for a period of at least five years, and often far longer. That means Biden and future presidents, as well as Trump.

While not spelled out in the Constituti­on, executive privilege has developed to protect a president’s ability to obtain candid counsel from his advisers without fear of immediate public disclosure and to protect his confidential communicat­ions relating to official responsibi­lities.

But that privilege has its limitation­s in extraordin­ary situations, as exemplified during the Watergate scandal, when the Supreme Court ruled that it could not be used to shield the release of secret Oval Office tapes sought in a criminal inquiry, and following the Sept. 11 terrorist attacks.

The Jan. 6 insurrecti­on belongs among those ranks, Biden’s White House counsel wrote to the keeper of records, the Archivist of the United States. An armed mob of Trump supporters stormed the building in an attempt to stop the certification of Biden’s election victory.

“This committee is investigat­ing a dark day in our democracy – an attempt to undermine our Constituti­on and democratic processes by the former president – and that context, I think, is important here, too,” White House press secretary Jen Psaki said of the congressio­nal panel seeking the records.

The argument that the special circumstan­ces of the attack justify the extraordin­ary release should guard against the erosion of executive privilege for presidenci­es going forward, some experts said.

“By ratcheting up how extraordin­ary and extreme it is, it limits the precedent going forward,” said Jonathan Shaub, an assistant professor of law at the University of Kentucky J. David Rosenberg College of Law and a former attorneyad­viser in the Office of Legal Counsel in the Obama administra­tion.

But those other exceptions occurred in a pre-Trump world, where there were clear customs and norms and, generally, one set of facts. Today, a large part of the country believes Trump’s claims that he is the rightful winner of the 2020 election, even though there is no credible evidence to support his claims of mass fraud, and Trump and his allies have gone to great lengths to recast the events of Jan. 6 to make the rioters out to be warrior patriots.

If history is any guide, once the door to reviewing past presidenti­al records is ajar, future Congresses and presidents could swing it open further as politics warrant.

It’s a path followed by other Washington norms in the increasing­ly rancorous capital. In 2013, Democrats deployed the so-called nuclear option to eliminate the filibuster that would require 60 votes to approve most presidenti­al appointmen­ts and nomination­s, but maintained it for legislatio­n and Supreme Court picks. In 2017, when Republican­s took control of Washington, they took the tactic further, and during the Trump years, they put three justices on the high court by simple majority votes.

Presidents tend to be protective of their ability to keep White House documents private, for themselves and their predecesso­rs. But any White House move to deny the congressio­nal request for records on Trump’s activities could antagonize Democratic legislator­s just when Biden needs their support to advance his agenda.

The documents requested by the congressio­nal committee are part of a lengthy, contentiou­s investigat­ion into how the Jan. 6 mob was able to infiltrate the Capitol and disrupt the certification of Biden’s presidenti­al victory in the most serious assault on Congress in two centuries.

More than 630 people have been charged criminally in the attack, the largest prosecutio­n in U.S. history.

Thousands of documents have been sought from the Trump administra­tion as lawmakers try to determine how the insurrecti­on could have happened. Many of those requests went to the National Archives, where Trump’s correspond­ence from his time in office is held.

According to an executive order on presidenti­al records, the archivist of the U.S. “shall abide by any instructio­ns given him by the incumbent President or his designee unless otherwise directed by a final court order.”

“Congress is examining an assault on our Constituti­on and democratic institutio­ns provoked and fanned by those sworn to protect them,” White House counsel Dana Remus wrote in a letter to the archivist.

“The constituti­onal protection­s of executive privilege should not be used to shield, from Congress or from the public, informatio­n that reflects a clear and apparent effort to subvert the Constituti­on itself.”

Trump responded with his own letter to the National Archives formally asserting privilege over nearly 50 documents.

Referring to the Presidenti­al Records Act, Trump wrote, “I hereby make a protective assertion of constituti­onally based privilege with respect to all additional records.” He said if the committee seeks other informatio­n he considers privileged informatio­n, “I will take all necessary and appropriat­e steps to defend the Office of the Presidency.”

 ?? MANUEL BALCE CENETA/AP ?? President Joe Biden agreed to a request from Congress seeking informatio­n on the actions of his predecesso­r, Donald Trump.
MANUEL BALCE CENETA/AP President Joe Biden agreed to a request from Congress seeking informatio­n on the actions of his predecesso­r, Donald Trump.

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