Precedents: Will Biden override Trump on executive-privilege claims on January 6 records?

AP Photo/Evan Vucci

What warning did Stephen Breyer send Democrats last week? “What goes around, comes around.” That’s the conundrum facing Joe Biden as the House’s committee on the January 6 riot sent records requests to Donald Trump, who’s widely expected to exercise executive privilege over at least some of them.

Biden could overrule that. But would he want to do so — especially after his cowardly abandonment of Americans in Afghanistan?

The National Archives and Records Administration has sent hundreds of pages of documents requested by the Jan. 6 select committee to the former president’s legal team to review, according to a person familiar with the situation.

That move kicks off a process that will result in some tough decisions for Biden’s White House counsel, both politically and legally. That’s because the office will have to decide whether to sign off on any efforts from Team Trump to keep sensitive White House communications from becoming public.

When it comes to document after document relevant to the Jan. 6 panel’s expansive request, Biden White House lawyers will likely face the same tough dilemma: They can either send Congress the material over Trump’s objections, entering unprecedented legal territory about the treatment of former presidents; or they can withhold materials from Hill allies, thereby stymieing investigators’ access and potentially generating significant political fallout.

Technically speaking, Trump can’t directly assert executive privilege, since he’s not the current president. However, every president until now has cooperated with their predecessors in endorsing such requests. As the archivists find materials relevant to the committee’s demands, we can confidently predict that Trump and his team will request that Biden assert privilege over some or perhaps most of them.

And those requests may well be legitimate. Executive privilege shields the executive branch from intrusions by the legislature into areas beyond the latter’s authority — the inner discussions between a president and his advisers. As long as those discussions don’t have a criminal purpose, executive privilege is not just available but a necessary component for the separation and co-equality of the two branches of federal government. That is one reason why presidents normally side with their predecessors on such requests, regardless of personal animosity or partisanship.

The other main reason is, of course, self preservation. At some point, every president has to leave office, and usually every president has episodes they’d prefer to keep mostly to themselves and their closest advisers. Setting the precedent that former adversaries will expose them to partisan file-raiding sets up a very dangerous post-presidential environment for any president.

And given the catastrophic and cowardly debacle just executed by Joe Biden in Afghanistan, perhaps this one in particular. Or does Biden relish the idea of having a Republican-controlled congressional committee getting the green light from a Republican president to strip away all of his privilege requests to get to the bottom of how Biden abandoned thousands of Americans to the Taliban?

To paraphrase Breyer, karma will be a real beeyotch under those conditions, and not just for Biden. It might end up burning some of Biden’s advisers who can expect a longer time living with what the betrayal they perpetrated in Afghanistan. Even if Biden can be expected to indulge his desire for revenge against Trump, at least some of his advisers don’t follow Biden’s lead in playing checkers in a 3-D chess world. They know what the risks are if they set this precedent.

Of course, it’s also possible that the archivists won’t find much of anything to satisfy the purposes of the 1/6 committee, too. If so, Biden might get a pass on this choice. But it’s more likely that Biden will have to choose between pandering to the progressive mob and eventual self-preservation, and … the track record on his choices isn’t good. At all.