The Executive-Privilege Paradox

[Nevilledog]

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Kate Shaw
@kateashaw1
·
Oct 15, 2021
I’ve got a piece up in @TheAtlantic this morning about recent developments surrounding executive privilege & the Jan 6 docs; thrust is the Biden admin was right not to assert the privilege here, & there’s no reason to worry that the decision (1/2)

The Executive-Privilege Paradox
The Biden administration isn’t going to fight Congress over January 6 documents. That's a good thing for the presidency.
theatlantic.com

Kate Shaw
@kateashaw1
will undermine future, legitimate assertions of the privilege. (2/2)
6:12 AM · Oct 15, 2021

https://www.theatlantic.com/ideas/archive/2021/10/january-6-trump-executive-privilege-biden/620393/

No paywall
https://archive.is/oejk9

Late last Friday, the Biden administration did something that was, in a way, surprising. Across many years and multiple administrations, presidents have jealously guarded the executive branch’s prerogative to withhold certain categories of information from Congress—as well as from the courts and the public—insisting that executive privilege is both constitutionally grounded and essential to the separation of powers. But the Biden administration decided to go against that norm, announcing that it would not invoke executive privilege to block the release of White House documents requested by the House Select Committee to Investigate the January 6th Attack on the United States Capitol.

The letter announcing the decision, from White House Counsel Dana Remus to the archivist of the United States (in whose custody the documents reside), explained that President Joe Biden “has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents.” A second letter, released by the White House Wednesday night, acknowledged that former President Donald Trump had informed the archivist that he wished to assert executive privilege over the requested documents, but that after due consideration, Biden adhered to his original determination. This clears the path for the documents’ release to the committee, although Trump may still attempt to use the courts to block—or at least delay—the committee’s access.

In its strongest form, the argument for executive privilege holds that it is necessary to the president’s discharge of the constitutional duty to “take care that the laws be faithfully executed.” Because few executive-privilege disputes reach judicial resolution, the practice and precedents of the political branches form the backdrop against which future disputes play out. At first blush, then, the decision to allow congressional access to these documents—some of which likely reveal the details of presidential conversations and decision making, exchanges that executive-branch lawyers typically view as covered by an especially strong form of executive privilege—appears to be at odds with the executive branch’s long-term institutional interest in retaining the ability to assert executive privilege.

But that’s not the right way to understand the Biden administration’s decision. Its decision is actually consistent with the principles and purposes that underlie executive privilege—principles that receded in the Trump administration, as the executive branch adopted a posture of complete defiance of congressional demands for information. The determination here is both faithful to the purposes of executive privilege, and also an important instance of constitutional course correction—one that confirms the role of legitimate congressional oversight in our scheme of separated powers.

*snip*

[Septua]

1. What paradox?

"President Joe Biden “has determined that an assertion of executive privilege is not in the best interests of the United States"

"..best interests of the United States" sums up executive privilege. It has nothing to do with the guy in the Oval Office and certainly wasn't established to protect the President from illegal acts. Trump and whoever else sitting around in the Oval discussing strategies to block the Congressional certification of the election wasn't in the best interests of the United States.

[Hortensis]

4. Exactly. Thanks for stating it so clearly.

Biden told us his most important job is to save our democracy. These people act surprised that doesn't take second (or tenth) place behind guarding the expansion of privilege established by his predecessors -- including tRump's corruption and sedition!, for its own sake.

[lagomorph777]

2. TFG was doing the exact opposite of "take care that the laws be faithfully executed."

So he forfeits that protection.

[gratuitous]

3. The argument against always seems to be "But Republicans will abuse this mechanism!"

Uh, they already do. Democrats bind themselves to the gentlemen's agreements, the courtesies and traditions from days of yore, while Republicans gleefully steamroll convention and squeal that there's no law against it. Indeed there isn't, whether Mitch McConnell refuses to even hold a committee hearing for a Supreme Court nominee or bulldozes another nominee through in record time, there's no law that says he can't do that. It's only the dirty fucking hippies (who can be safely ignored) who even notice the flaming hypocrisy. Everyone else just expresses their admiration for McConnell's power political game.

The Biden administration finally declines to participate in the latest fantasy out of the Republicans, and all the Pitty-Pats swoon over the possibility that someday in the future a Republican president won't respect a Democratic president's claim to privilege. Guess what? They won't anyway, so there's nothing to be lost by refusing to aid and abet the cover-up of the former guy's criminal acts.