President Joe Biden agreed to the request of Congress in obtaining sensitive information regarding the actions of then-president Donald Trump and his aides during the Jan. 6 insurrection. Experts say that this is a risky move as it could affect Biden and future U.S. presidents.
Presidents Enjoy Executive Privilege
Biden’s decision not to block the information that Congress seeks challenges the norm regarding presidents enjoying the executive privilege. With this privilege, the records of their terms in office are held in secrecy, whether the information is mundane or highly sensitive. Usually, such information can be in secrecy for five years or often for a longer time. Further, through the executive privilege, presidents can obtain candid counsel from their advisers without fear of immediate public disclosure, and they can protect their confidential communications relating to their official responsibilities, AP reported.
Biden Says Executive Privilege Has Limitations
AP shared that Biden said his decision not to block the sensitive information regarding the actions of Trump and his aides last Jan. 6 is because the executive privilege is not without limits. One of the limitations for the imposition of such privilege is an extraordinary situation. According to Biden’s White House counsel, who wrote to the keeper of records, the Archivist of the United States, the Jan. 6 insurrection is an extraordinary situation because an armed mob of Trump supporters stormed to the capitol in an attempt to stop the certification of Biden’s election victory. Per an executive order on presidential records, the Archivist has to abide by instructions given him by the incumbent president or his designee. The only limitation is a final court order stating otherwise.
AP also quoted Jen Psaki, White House Press Secretary, saying, “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 counsel Dana Remus also wrote a letter to the Archivist saying that Congress is examining an assault on the Constitution and democratic institutions after the Jan. 6 incident. Remus added that the constitutional protections of executive privilege should not be used to shield Congress or from the public such information that will subvert the Constitution.
Such an argument will guard against the erosion of executive privilege for other presidents, experts claimed. AP News quoted Jonathan Shaub, an assistant professor of law at the University of Kentucky J. David Rosenberg College of Law and a former attorney-adviser in the Office of Legal Counsel in the Obama administration, saying, “By ratcheting up how extraordinary and extreme it is, it limits the precedent going forward.”