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Biden Should Embrace Executive Privilege—To Weaken It

How much leeway will the Supreme Court give a president who wants to stonewall House Republican investigations? There’s only one way to find out.

Jim Watson/Getty Images

Aside from whatever they hope to leverage out of the Biden White House as part of a debt ceiling showdown, House Republicans can’t really pass significant legislation that would be signed into law for the next two years. So the new GOP majority will instead be flexing its newfound legislative powers in another way: by conducting as many investigations into the Biden administration and its allies as it possibly can.

On Wednesday, the new GOP House majority will kick things off with a House Oversight Committee hearing into one of the most pressing civic issues of our time: Twitter’s decision two years ago to temporarily block users from sharing a story about Hunter Biden’s stolen laptop. Broader inquiries into Biden’s border policies, the Justice Department’s investigations into Trump and January 6, various foreign policy matters, and Covid-19 are expected to follow.

President Joe Biden might be tempted to cooperate with some of these inquiries, breaking from the scorched-earth battles that his predecessor waged against basic congressional oversight. Some moments of his presidency are justifiable targets for scrutiny, like the rapid collapse of Afghanistan in 2021 after Biden withdrew troops from the country, as well as the two decades of failed policies that preceded it. Otherwise-legitimate oversight topics like the pandemic will trend less toward learning what we could’ve done better and more likely toward fanning right-wing memes and conspiracy theories about vaccines and Anthony Fauci.

For Biden, however, cooperation would be a missed opportunity. There is no reason to believe that most of these investigations will be conducted in good faith. The current speaker of the House missed his initial chance for the job in 2015 after admitting on Fox News that Republicans had ginned up years of Benghazi inquiries to bring down Hillary Clinton’s poll numbers. And even if Biden cooperates, there would be nothing to stop the next GOP president from invoking executive privilege before Republican-friendly judges when they next retake the White House.

Biden’s best shot at restoring a healthy balance between the executive and legislative branches in the long term is to double down on Trump’s approach by invoking executive privilege whenever and however he can. Perhaps he can let the guard down every once in a while if doing so would legitimately be in the public interest. But by stonewalling Republican-led committees in bad-faith investigations, he can make it more likely that the courts will weaken executive privilege for future presidents.

While it is supposedly as old as the republic itself, you won’t find the phrase “executive privilege” in the Constitution. Nor will you find language pertaining to the executive branch offering comparable protections to those the speech and debate clause, which explicitly immunizes members of Congress from arrests and subpoenas for their official legislative duties, confers upon lawmakers on Capitol Hill. But in 1796, George Washington refused a request from the House to hand over all papers related to the Jay Treaty’s negotiations two years earlier, and presidents have used that example ever since to claim executive privilege was cool and good and legitimate.

From time to time, the courts have had to get involved to resolve these questions. In the 1974 case United States v. Nixon, the Supreme Court famously ruled that executive privilege was real but Richard Nixon couldn’t use it to get away with crimes. Whether executive privilege is properly used in the modern era typically depends on whether you prefer the Congress in question or the president in question.

Even by that standard, however, executive privilege has recently expanded in ways that range from overreaching to outright dumb. On the latter end of the spectrum was former adviser Steve Bannon’s refusal to testify before the House January 6 Committee. At one point during the standoff, Trump offered to waive executive privilege so that Bannon could testify, a move that most observers dismissed as an ex post facto way to legitimize Bannon’s refusal to participate in the first place.

In the mythologized version, executive privilege allows a president’s Cabinet members and other official advisers to give candid advice. The assumption is that if a president’s advisers always had to fear getting grilled about it by some former prosecutor who won a safe House seat and joined the House Oversight Committee, they might not give the president the best advice they can. By that point, however, Bannon had not worked in the White House for at least three years and had multiple high-profile fallings-out with Trump. It’s also likely that Bannon’s discussions with Trump in the lead-up to January 6 weren’t exactly about the Jay Treaty negotiations.

While Trump and Bannon failed to pull off this particular gambit, it nevertheless highlights the absurdity of Trump’s legal strategies. His goal in litigation is not necessarily to win outright but to wear down his opponents through attrition. After federal agents raided Trump’s Mar-a-Lago compound last year in search of purloined classified documents, Trump again tried to invoke executive privilege to stop an apparent criminal inquiry in its tracks. In the ramshackle complaint he filed before an exceedingly friendly judge that he himself had appointed, Trump claimed that the Justice Department had violated executive privilege by seizing the apparently classified documents and sought their return.

It was a bold claim, to say the least. Trump was trying to invoke executive privilege against the Justice Department, which is literally part of the executive branch, and hoped to wield it as a former president against a sitting president. If executive privilege were to allow former officials with no legal or constitutional status to block the Justice Department from investigating them, then it would be little more than a get-out-of-jail-free card. It took a few months to sort out the mess, thanks in large part to Judge Aileen Cannon’s indefensible willingness to go along with it.

Fortunately, Biden’s most significant decision about executive privilege so far has been to weaken it. In 2021, the House January 6 committee sought to obtain Trump White House records from the National Archives as part of its inquiry into the attack on the Capitol that year. As expected, Trump invoked executive privilege to try to block the documents’ release, only to be rejected by the courts. There were signs, however, that at least a few of the justices might be willing to embrace the idea that ex-presidents left office with some sort of presidential residue on them.

The Supreme Court’s order to decline to intervene handed Congress a victory but also effectively set aside the portions of the D.C. Circuit Court of Appeals ruling that had rejected the former-president theory by describing it as “nonbinding dicta.” Justice Brett Kavanaugh went even further in a statement attached to the order. “A former president must be able to successfully invoke the presidential communications privilege for communications that occurred during his presidency, even if the current president does not support the privilege claim,” he wrote. “Concluding otherwise would eviscerate the executive privilege for presidential communications.”

If that’s the case, then Biden should use the next two years to see just how much executive privilege the courts are willing to stomach. When the courts reject his claims, he will have set clearer boundaries on when and how future presidents can invoke it. And if the courts side with him, then he was right all along. Naturally, this doesn’t mean that Biden should stonewall legitimate investigations or decline to hand over materials that are unequivocally in the public interest. But if he senses even a hint of bad faith from a GOP inquiry, then he should at least use it as a vehicle to limit future claims of executive privilege. Making it harder for presidents to evade accountability from Congress, after all, is also in the public interest.