In one very real sense, this would be the most populist move to make. In another very real sense, however, Joe Biden might put himself and everyone who works for him at heightened risk for partisan raids on advisory discussions in the future. Biden has apparently not made a decision yet, but the Washington Post reports that Biden is leaning toward denying Donald Trump’s executive-privilege claims on documents and testimony demanded by the House’s January 6 commission:
The White House is leaning toward releasing information to Congress about what Donald Trump and his aides were doing during the Jan. 6 attack on the U.S. Capitol despite the former president’s objections — a decision that could have significant political and legal ramifications.
Trump has said he will cite “executive privilege” to block information requests from the House select committee investigating the events of that day, banking on a legal theory that has successfully allowed presidents and their aides to avoid or delay congressional scrutiny for decades, including during the Trump administration.
But President Biden’s White House plans to err on the side of disclosure given the gravity of the events of Jan. 6, according to two people familiar with discussions who, like others, spoke on the condition of anonymity to describe the private discussions.
I wrote about the conundrum for Biden last week. Legally, only the current president can exercise executive privilege, but it has long been customary for incumbents to do so on request from their predecessors. For one thing, the premise of executive privilege is the same regardless of current status — it protects frank and honest conversations among advisers and presidents. Undo that, and suddenly presidents will get much less of that and lot more a**-covering, or at least that’s the theory. For people who work in administrations and have longer-term political ambitions, the idea that their confidential input might get exposed by their political opponents might keep them from taking such jobs in the first place.
This move would have no end of ironies. Biden is perhaps the most establishment president ever, having marinated in Washington DC for nearly half a century before winning office last year. Executive privilege is designed to create strategic opacity over a limited set of functions, although the administration Biden previously served attempted to expand it significantly to Cabinet members in the Operation Fast & Furious scandal. It’s one of the key features of “the swamp,” if one is inclined to fulminate over such things.
If your highest priority is draining the swamp, dismantling executive privilege should be one major goal. Having Trump exercise it is a bit ironic anyway, even if legal and fairly normal under the circumstances, but having Biden dismantle it through Trump would be one of the biggest ironies in Washington seen in years, if not decades. Let’s not forget that Trump often wanted to go after Obama administration discussions over unmasking, the Russia investigation, and so on, and also cast it at times as his effort to drain the swamp. There’s a little bit of going-around-coming-around happening with Trump in this instance.
Biden probably has more to risk in setting a new precedent of waiving such requests, or at least the people who work for Biden do. In eight months, Biden has governed over a series of failures culminating in the historic disgrace of his bug-out from Afghanistan while leaving thousands of Americans behind. When Republicans have control of Congress under another president, they will want to know all of the details of the conversations that took place and the advice Biden was given about the effects of his plan for withdrawal. A Republican president will likely follow whatever precedent Biden sets on this request when that opportunity arises.
In other words, Biden should choose carefully. However, since Biden remains convinced of his grandmaster status while playing checkers in a 3-D chess tournament, we can rest assured that he will act without any sense of strategic or tactical vision to score the cheapest possible political point. Swamp-draining, ahoy.