President Biden’s Choice To Decline Executive Privilege Before Trump v. Thompson

D.C. Circuit decided Trump v. Thompson. Jon Adler (co-blogger) wrote about this here. The lengthy discussion on executive privilege has been a long time in my memory. This is where I will address an important decision that was made in the lead up to this case.

The Archivist of America was requested by the January 6 committee earlier in the year. The January 6 committee wanted records from the Archivist in the USA that were related to Trump’s claims of election fraud. Trump claimed executive privilege on some documents. These documents were not subject to executive privilege by President Biden. Below is an extract from the White House Counsel letter addressed to the Archivist.

Following consultations with the Office of Legal Counsel, the Department of Justice President Biden determined that executive privilege can be asserted. Not in the United States’ best interestThis is against the law and cannot be justified in any way with respect to any of those Documents. The President Biden stated that the January 6th insurrection and its extraordinary circumstances must all be fully documented to prevent another such event. Congress is faced with a pressing needit serves its legislative function to discover the causes of these terrible events.

The President made this decision because he believed it was best for the country, which is his right. This choice, though, was more difficult than most people realize. Biden wasn’t simply declaring his position on a random individual. Biden used his legal power to determine his opponent in the 2024 elections. The 2024 election will be affected by Biden’s authorization for the congressional investigation into the aftermath of the 2020 election. More precisely, Trump’s decision to deny executive privilege could lead to the publication of documents which may cause him harm and expose him to criminal or civil liability.

Biden likely thought about how his decision regarding executive privilege might affect his campaign for reelection. It is impossible for politicians to distinguish the exercise of power and the election ahead. Biden might have had some hesitation to criticize Trump’s claim because of the potential for him to appear to be punishing his opponent. Biden made his decision.

These two sentences were written nearly two years ago in my journal. New York Times:

Politicans often promote their knowledge of the overall welfare while simultaneously considering the impact on their popularity. Both concepts often cross: The best for the country and the official’s popularity is the same.

Well, of course I was writing about Trump’s first impeachment. In the article it was claimed that Trump sought information on Hunter Biden from President of Ukraine for his “personal political advantage rather than for legitimate policy purposes.”

You can find the TimesI also wrote:

Politicians pursue public policy according to their vision, while also being concerned about the future of their party. Otherwise legal conduct, even when plainly politically motivated — but without moving beyond a threshold of personal political gain — does not amount to an impeachable “abuse of power.”

In the coming three years, President Biden may have to make many decisions that directly impact his opponent. One example is that his government could charge Trump with inciting an insurrection. That choice is discussed here by Seth Barrett Tillman (and me). Or, his government may decide to take legal action regarding whether Trump should be disqualified under Section 3 (Fourteenth Amendment). (Seth, I and another paper were involved in Section 3 research. It will soon be published). Trump may be unable to vote because of these hard choices. Biden would be able to say that he was doing his part in the promotion of the common good. Trump’s critics and his supporters would agree with Biden. However, no one politician can define the general welfare. It will continue to be debated.

Under these circumstances, I don’t think Biden would abuse power. Many Republicans will see the situation differently if they were hurt by the impeachment trial. The Republicans will soon see President Biden using his power to harm his political rival–in the same manner that Democrats saw Trump’s conduct in relation to Hunter Biden. Biden may use his power to harm Trump’s health if Republicans gain control of the House. We could see another impeachment being filed if that happens. I forewarned in 2020 that the misuse of power theory could be adopted. The consequences of such a decision will be apparent soon.