Former President Donald Trump is threatening litigation over the decision of President Joe Biden not to invoke executive privilege over the release of Trump records to a special committee of Congress looking into the Jan. 6th riot in Congress. As I told the Washington Post yesterday, I believe that Congress would be in a stronger legal position in such a court fight. However, there is an unbroken tradition of deference by the incumbent presidents to their predecessors. In the past, incumbent presidents would generally support their predecessors in restricting access, despite partisan differences. While this is a fairly unique circumstance, it appears we may be poised here to shatter that tradition.
I previously wrote about these disputes in a law review article with Cornell. Jonathan Turley, Presidential Records and Popular Government: The Convergence of Constitutional and Property Theory in Claims of Control and Ownership of Presidential Records 88 Cornell Law Review 651-732 (2003).
The greatest challenge for Trump is 44 U.S.C. 2205:
Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208 of this title—
(1) the Archivist and persons employed by the National Archives and Records Administration who are engaged in the performance of normal archival work shall be permitted access to Presidential records in the custody of the Archivist;
(2)subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available—
(A) pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding;
(B)to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available; and
(C) to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available; and
While this provision has not been the focus of much litigation, a court is likely to read it in favor of the Special Committee. Moreover, there is precedent for overcoming such privilege arguments from the Nixon period.
The PRA was justified on the basis of concerns for executive privilege as well as protecting matters of foreign relations. The idea was to create a buffer for presidents to receive frank and open advice as well as to engage foreign leaders without fear of disclosures in the short term. The PRA created ample periods that restricted release of presidential records to accommodate such concerns.
The best resolution is the one that seems rather naive today. President Biden should use his position to get Committee to narrow its requests while getting Trump to waive his objections. There is precedent for such compromises on executive privilege, including during the Trump Administration. Biden has a duty to his office as well as his predecessors (and successors) in office to protect executive privilege.
January 6th is a unique and terrible event in our history. Biden can certainly justify his position on that basis. However, there will be a new precedent set here which could impact future presidents as well as Biden himself. Moreover, with objections from Trump, there are statutory periods triggered under the law that will delay such work. The interest of both branches would be best served with a compromise rather than litigation.