Risky move: Biden undercuts WH executive privilege shield

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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.

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Democrat Biden has agreed to a request from Congress seeking sensitive information on the actions of Republican Donald Trump and his allies during the January 6 uprising, although the former president claims the information is protected by executive privilege.

Biden’s move isn’t the last word; Trump says he will challenge the requests, and there is likely to be a protracted legal battle over the information. Courts have ruled that executive privileges are conferred on former presidents in certain cases.

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But the playbook for the legal world is different from the political world. And 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 information sought by Congress challenges a tested criterion—one in which the president maintains a record of the secrecy of his terms in office for at least a five-year, and often longer, term. enjoy, both worldly and highly sensitive. That means Biden and future presidents, as well as Trump.

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While not spelled out in the Constitution, executive privilege evolved to protect the president’s ability to receive explicit advice from his advisers without fear of immediate public disclosure, and to protect his confidential communications relating to official responsibilities. Is.

But that privilege has limits in exceptional circumstances, as exemplified during the Watergate scandal, when the Supreme Court ruled that it could not be used to release secret Oval Office tapes sought in criminal investigations. And the terrorist of September 11 may be followed. attack.

The January 6 uprising is one of those ranks, Biden’s White House attorney wrote to the record-keeper, the United States Archivist. An armed crowd of Trump supporters stormed the building in an attempt to prevent authentication of Biden’s election victory.

White House Press Secretary Jen Psaki said of the congressional panel seeking the record: “This committee is investigating a dark day in our democracy – an attempt by a former president to undermine our Constitution and democratic processes – and This context, I think, is important here as well.”

Some experts said the argument that the special circumstances of the attack justify an extraordinary release should avoid the erosion of executive privilege for the presidency.

“How extraordinary and extreme this is, it limits the precedent going forward,” said Jonathan Schaub, an assistant professor of law at the University of Kentucky’s J. David Rosenberg College of Law and a former attorney-consultant in the office. Legal advisor in the Obama administration.

But those other exceptions occurred in a pre-Trump world during which there were clear customs and norms, and generally, a set of facts. Today, a large part of the country believes Trump’s lie that he is the rightful winner of the 2020 election, despite evidence to the contrary, and Trump and his allies have gone to great lengths to recreate the events of January 6. . The rioters are called warrior patriots.

If history is any guide, once the door is open to reviewing past presidents’ records, future Congress and presidents may open it further as politics warrants.

It’s a path followed by other Washington standards in the rapidly growing capital. In 2013, Democrats deployed the so-called nuclear option to eliminate filibuster, which would require 60 votes to approve most presidential appointments and nominations, but retained it for the likes of the law and the Supreme Court. In 2017, when Republicans took control of Washington, they took this strategy further, and during the Trump years, they placed three justices on the high court by simple majority votes.

The president protects his executive prerogative by keeping White House documents private to both himself and his predecessors. But any move by the White House to deny Congress’s request for records on Trump’s activities could antagonize Democratic legislators when Biden needs their support to advance his agenda.

The documents requested by the Congressional Committee are part of a lengthy and malicious investigation into how the mob was able to infiltrate the Capitol and obstruct the certification of Biden’s presidential victory in the most serious attack on Congress in two centuries. More than 630 people have been criminally charged in the attack, the largest prosecution in US history.

Thousands of documents have been sought from the Trump administration to determine how the rebellion could take place. Many of those requests went to the National Archives, where Trump’s correspondence is held during his time in office.

According to an Executive Order on the President’s Record, the Archivist of the United States shall “unless otherwise be directed by a final court order, obey any instruction given by the President or his nominee.”

“Congress is investigating an attack on our Constitution and the democratic institutions we’ve been sworn to protect,” White House attorney Dana Remus said in a letter to the Archivist. “The constitutional protection of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and conspicuous effort …

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Credit: www.independent.co.uk /

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