Biden's self-defeating decision on executive privilege may come back to haunt him

AP Photo/John Raoux

The congressional committees currently investigating the January 6th riot recently requested sensitive information from White House files involving internal communications between Donald Trump and his staff during the period in question. Trump immediately requested the files be shielded, claiming executive privilege. But breaking with previous precedents, Biden denied the request and said that the files will be delivered to the committee. That may seem like a cool, “own the cons” thing to do and a way to stick it to the Bad Orange Man, but as one analysis from the Associated Press reveals, this is a move that could come back to haunt Biden and any future presidents from either party. It’s yet another case of needing to be careful what you wish for because you just might get it.

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.

Trump’s court challenge may wind up succeeding and, if so, nothing much will come of this. But Biden is currently the top dog, so his say might hold some sway with the courts. If so, things will get interesting over the decades to come.

Traditionally, executive privilege for internal White House communications has been the rule of the road, though not in all cases. Famously, Richard Nixon was denied executive privilege when he tried to hide the Watergate tapes, but that involved a criminal matter directly involving actions taken by the President inside the Oval Office. The riot was an action taken by a large crowd of Trump supporters.

If there are still people in Congress who actually believe that Donald Trump was somehow involved in planning the attack on the Capitol Building, they’re probably in for a great deal of disappointment. But if the courts allow those documents to be revealed, Joe Biden will have set a new precedent that future presidents will be able to draw on. This possibility becomes even more intriguing if Trump decides to run again in 2024 and manages to win a second term.

Just imagine what sort of things the GOP could ask for (assuming they retake the majority in either chamber) and the options that Trump would have at his disposal. What if they wanted to see any and all communications between Joe Biden and Hunter Biden or any of his business partners. Would the “Big Guy” have sought advice on how to handle any cash that might have come from China via Hunter? I wonder if Uncle Joe’s advisors have ever sent him any emails discussing the best way to handle the Tara Reade situation. Have there been any internal communications this year between the Oval Office and the Departments of Defense and State expressing the current President’s opinions about the Taliban’s chances of completely overwhelming the previous government and the Afghan military? And on that subject, we still don’t know what sorts of deals were cut or what sweeteners were offered to the Taliban to let us flee from Kabul largely unmolested. Surely there were internal discussions about that, right?

All of these things will be on the table in 2025 if Trump or any other Republican takes a seat in the Oval Office. And now that the precedent has been set (assuming this happens), there’s nothing holding them back from simply opening the vaults wide and releasing all of Joe Biden’s dirty laundry to Congress and eventually the media. (Because you know that sort of thing will always leak out sooner or later.)

Joe Biden probably thinks he has the tiger by the tail right now and he’s ready to stick it to his predecessor to score some cheap political points. But perhaps his advisors should pull him aside for a moment and caution him against this. Tigers have a way of turning around and biting you.