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.
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 has agreed to a request from Congress seeking sensitive information on the actions of Republican 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 final word; Trump says he will challenge the requests, and a lengthy legal battle is likely to ensue over the information. Courts have ruled that former presidents are afforded executive privilege in some cases. 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 the information sought by Congress challenges a tested norm — one in which presidents enjoy the secrecy of records of their own terms in office, both mundane and highly sensitive, for a period of at least five 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 confidential communications relating to official responsibilities. But that privilege has its limitations in extraordinary situations, as exemplified during the Watergate scandal, when the Supreme Court ruled that it could not be used to shield the release of secret Oval Office 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.
