Congress, Constitutional Law

Trump and Biden Collide Over Access to Presidential Records

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
(3)the Presidential records of a former President shall be available to such former President or the former President’s designated representative.

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.

44 thoughts on “Trump and Biden Collide Over Access to Presidential Records”

  3. To Democrats and the media, transparency is like a one way mirror.

    Biden, the University of Delaware, and the media are conspiring to hide Biden’s Senate records. Records that may contain information relevant to Biden’s alleged sexual assault of Tara Reade- a credible allegation if there ever was one. If they were the least bit interested in transparency – and cared one whit about their credibility – they would release them immediately.

  5. What comes around goes around.
    Something that many voters and politicians ignore much to their consternation at election time.

  6. Non-disclosure agreements are not enforced for government staff . They are a worthless piece of paper. Only staff employed personally via Trump or his campaign can be held to them.

  7. “Shattering the traditions”? In that not all Trump has been about? Turley is NOW concerned about such? Where was he during the Trump WH years?????

    1. Well, what the hey anyway. They shattered the hell out of the impeachment process, why stop now? If you’re on track to wreck the whole country, might as well be thorough about it.

  8. Exactly how long is Special Counsel John Durham going to allow the Obama Coup D’etat in America to persist?

    Two “fake,” Pyrrhic impeachments and stealing the 2020 election was not enough?
    _________________________________________________________________

    “We will stop him.”

    – Peter Strzok to FBI paramour Lisa Page
    —————————————————-

    “[Obama] wants to know everything we’re doing.”

    – Lisa Page to FBI paramour Peter Strzok

    1. Susan Rice, also it was reported that in an email of hers, that Obama wanted to be retained in the loop and do every thing by the book.

  9. “The interest of both branches would be best served with a compromise rather than litigation.”

    What you ignore is that Trump doesn’t care what is in the best interests of both branches. Trump is not part of either branch, and he seems likeliest to file suit.

    1. And youignore the obvious….Lord Senile Darth baizou Biden doe snot give a rat’s behind what is good for anything but him and his whore mongering son. And also what his handlers want. If you had not noticed this…well you are blind & deaf.

  10. So, we will start a new tradition that if the opposition controls one House of Congress, when the Presidency changes hands said House will Initiate investigations of the previous Administration as fishing expeditions (which is what the current subpoenas are) so the nee Pres can give them everything and they can then strategically leak it. Great.

    As the Democrats know this will be the inevitable result, I infer they intend to never let an opposing party ever win a Presidential election.

    From that, I further infer they have good reason to believe that their alliance with the Deep State, media, big business and rap big tech, and the Republican establishment, which “fortified” the 2020 election and guaranteed Trump would lose by whatever means necessary, is durable.

    I am old enough to remember when Americans thought one-party states were a bad thing. No longer the case.

    WaPo was right about how democracy dies, it was not a warning but an aspirational goal.

    2. Your inferences are based on incorrect assumptions so they’re all wrong. Deep state is a made up boogeyman, be scared of it if you want but it’s like admitting you’re scared of leprechauns or unicorns. Trump lost the election not because of some labyrinthine conspiracy but because he got fewer votes than are necessary to win- Occam’s Razor.
      As for “never letting an opposition party win an election” that’s a strange thing to accuse Democrats of. The recent Republican fishing expedition in AZ, far from a vote-tallying operation, was a pretty ham-fisted attempt to gain access to voter rolls and election systems technology, presumably with the goal of “never letting an opposition party win an election.” Funny how Republicans always accuse others of the things they’re doing; I assume this is because Republicans assume everyone is as craven as they are. Talk about incorrect assumptions!
      Speaking of “never letting the opposition win,” Remember 2000, when Bush probably lost the election to Al Gore but the Supreme Court voted along strict partisan lines to install a Republican president? And then remember how Bush fumbled the ball on 9/11, started wars in Iraq and Afghanistan, crashed the economy and bailed out the banks? That was an unmitigated disaster which could’ve and should have been avoided. don’t blame me, I voted for Gore.

      Warm regards,
      -DMcG

      1. The Sore loserman ticket lost , and bigly. They new it . Hence their army of slimey lawyers all slithered back into the shadows.
        The AZ forensic audit of just Maricopa county alone shows massive double voting , massive blank ballots , no signatures , multiple addresses used , thousands more yet that all hail from same addresses and or phone numbers , More ballots received than sent out…. and on and on. That election was fraud city and it is coming into the light !.

  11. What goes around comes around. They will lose the majority some day and the Executive Office. All Democratic Presidential records will be sifted through and passed on to a Congressional committee investigating something. Bill Clinton, Obama, Biden ought to watch out. Is that the way the game is played? Any previous discussion by a President and member of Congress is fair game. This is the type of government that exist elsewhere. Biden will hit the wall with this one. Nancy skates while Biden, if he does it, consciously degrades a predecessor. I don’t care how much the insanity over never Trump, there will be a too far. Everyone is missing it, January 6th was a buildup of years in the making. Corrupt Governing and abuses of power beyond reproach. Half this country and members of Congress are in denial. So if it is not Trump…another populist will be elected. It will come back to haunt…unless some sense of common decency is established now. Biden pranced around Ground Zero talking unity and showing as if he cares. Nothing he’s done in 8 months has a shred of unity attached to it!

  12. Every decision made or promised by the Biden Administration has followed the “might makes right” standard. Honor, integrity, precedent, respect, fair play, decorum, none of these have meaning in an administration that rules by mandate and executive order.

  13. The old saying ‘what goes around comes around’ really does not apply here. It seems that presidents use the executive privilege thing to block the records because they don’t won’t their records exposed. He will be 82 or somewhere around there at the end of this first term if he makes it and will not care if his records are exposed because they are not his records, (maybe we will find out who was really in charge). He could always claim senility and any legal action will take years. Of course then you have the corrupt MSM which make all of the above moot.

  14. I was listening to a podcast today and the commentator was discussing what the Biden administration has done since elected. He wasn’t quite sure whether it was by purpose or accidental. He then asked: “can you name one good thing the Biden administration has done for Americans or the nation”?

  15. I was going to go talk to Biden next week about what I know about a certain issue. Now I’ll never go. My statements should be secure.

  16. 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.

    Oh, I believe that horse left the barn awhile ago. Besides the fact Biden doesn’t do anything that would get him in trouble with his handlers, those advising him are in the 4th quarter of ending all connection with constitutionality, precedent, tradition and the separation of powers. So anything they can do to end the threat of their loss of power will be done.

    1. ….. appears we may be poised here to shatter that tradition

      OLLY: Oh, I believe that horse left the barn awhile ago.

      Good catch. Leftists are all about destroying traditions like peaceful, cooperative transitions on Presidential Inauguration Day.

      1. Right wingers are all about destroying traditions as well- here’s some anti-Semitic Proud Boys on Jan 6th disrupting the election certification while wearing shirts with “6 million Jews was not enough” and “Camp Auschwitz”on them: https://i.imgur.com/Gegq5pD.png

        Why right wingers hate Jews so much I’ll never know, especially when they’re always going on about how much they love Israel. It’s a real head scratcher.

  18. Turley is analyzing the issue from a legal perspective which is right.

    However personal animus and political calculations are probably the dominant issues for the Biden administration.

    1. Turley started out by misrepresenting an alleged Biden decision which has yet to be made. There have been statements floated that he is “leaning toward” giving the committee the records they are looking for but no decision at the time of Turley’s post (and my reply) has been made.
      It’s true that executive privilege requests are generally honored but they don’t usually come from possible defendants. Turley’s suggestion Biden negotiate with Trump to reach an agreement to a more narrow requests would be to ignore Trump’s failure to turn over anything willingly.

      1. Turley’s suggestion Biden negotiate with Trump to reach an agreement to a more narrow requests would be to ignore Trump’s failure to turn over anything willingly.

        It is a shame when Presidents do not turn over information willingly.

        Clinton Served Subpoena In Lewinsky Inquiry

        WASHINGTON (AllPolitics, July 26) — Independent counsel Ken Starr served President Bill Clinton with a subpoena in recent days that calls for his testimony before the Monica Lewinsky grand jury next week, CNN has learned.

        The issuance of the subpoena marks the first time a sitting president has been subpoenaed to testify before a federal grand jury

        http://www.cnn.com/ALLPOLITICS/1998/07/26/clinton.subpoena/

        We can only imagine your outrage when Bill Clinton required a subpoena to testify involving his abusing a young female subordinate.

        1. We can only imagine *your* outrage when Trump refused to testify in the Russia investigation and also refused to answer a large number of the written questions. Mueller said under oath that he chose not to subpoena Trump because he expected that Trump would challenge the subpoena in court (something Bill Clinton didn’t do) and that it would take too long to resolve.

          1. You Rachel madcow , and psaki are all still stuck on Russia Russia…when nobody but hunter biden and slow joe made money and have ginormous contacts with Russians and their money. Hypocrisy is too nice of a descriptive for your bent. For example remember the late mayor of Moscow’s wife hand delivered hunter Biden $3.5 million……did he ever pay taxes on that ?. And the latest $2 mil a year retainer plus “success” fees from Libyans and other dirka dirkas trying to access $15 billion in quadaffi monies with a hold on them. But apparently corruption of your political brand is so AOK you have to believe in fairy tales about ANY opposition to your Pravda.

          2. Was it established that DT did Russian Collusion? NO, no chargesd brought. Will the true John Durham fact findings be released? No. Has DT been charged with a crime? The llast resort to do so by Dems were DtT’ tax returns and Financial statements. Seems there is no there there. So if there remains any facismile of a Constitutional Republic remaing, DT, barring any health issues,etc., will run and probably win. So your’s and many others asses will really be chapped badly.

            1. “Was it established that DJY did Russian collusion?” I mean his campaign chairman, Paul Manafort, is in jail for exactly that. Did you miss that news or…?

          3. We can only imagine *your* outrage when Trump refused to testify in the Russia investigation and also refused to answer a large number of the written questions.

            The President knew what we all know now. The “Russia Investigaion” was nothing but a political operation. The President refused to participate in the sham.

            What Mueller knew, because President Trump told him. That the President would answer the subpoena with information from classified documents. Something the deep state could not allow.

        2. You can come up with an example of a President covering up his wrongdoing. Trump’s has attempted to hide his entire Presidency, even requiring all his staff to sign non-disclosure agreements. Find an example of anyone else doing that?

          1. enig the record cover up was lead by Hussain Barrack Obama. You can hate DT along with all the Dems as hard and long as you like. You can have your opinion and I will have mine. That is your prerogative. DT believed in America, its traditions and culture. You can object to that as long and hard as you like. The damage obama and Biden have done to America can not be overcome. Any differing of an opinion by you from my standpoint, you can stick it in your ear.

              1. And just as much as you bleet outthat , nobody can thus accuse you of being open minded. You are most assuredly down with the senile biden sickness. As senile leader and his handlers expose their grift , hypocrisy and group think every day…you drink that koolaide whilst this titanic like corrupt admin goes down. Will you make it to the lifeboats / , women and children first now….

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