Biden won’t shield Trump records. Will he regret it?

The House Panel investigating Jan. 6’s riot at Capitol will recommend that Steve Bannon, a former adviser to President Donald Trump, be charged with criminal offenses for failing to comply with a congressional subpoena.

With this, the next stage of the brewing conflict between President Joe Biden & former President Trump will be launched over the “executive privilege”, a vaguely defined term that covers the president and his top White House advisers and which has seldom been tried in court.

Why This

Was Written

Past presidents are always the current presidents. This is why they have supported each other on executive privilege. In the aftermath of Jan. 6’s riot, however, President Joe Biden has broken that rule.

This fight could permanently reshape America’s presidency, because another norm has been eroded: that of a sitting president protecting advisers’ communications confidentially.

The risks are high. After he leaves office, President Biden may lose all of his confidentiality protections. Subpoenas issued by Congress may prove to be toothless and lead to Congress being declared ineffective.

There are also potential political ramifications ahead of the 2022 midterms and the 2024 presidential race – a contest Mr. Trump himself may enter.

“Presidents support the privilege claims made by their predecessors “out of interest not just of their office, but also of self-interest,” Jonathan Turley from George Washington University, who is a constitutional law professor.

Washington

The gauntlet is down. Next Tuesday, the House panel that investigated the Jan. 6, riot at U.S. Capitol will recommend criminal charges against Steve Bannon. This is a former adviser to President Donald Trump.

Thus is the start of the next stage in a heated clash between former President Joe Biden, and Trump about “executive privilege”, a vaguely defined term that covers the president and his top White House aides and which has seldom been tried in court.

This fight could change the presidential landscape permanently as it threatens to end the tradition of a sitting president protecting adviser communications confidentially.

Why This

Was Written

Current Presidents are always past presidents, which is why they back each other on executive privilege. In the aftermath of Jan. 6’s riot, however, President Joe Biden has broken that rule.

There are many risks. After he leaves office, President Biden may lose all of his confidentiality protections. Subpoenas issued by Congress that don’t result in any action could make it appear as though Congress is toothless.

There are also potential political ramifications, as both parties seek to keep their supporters energized ahead of the 2022 midterms and the 2024 presidential race – a contest Mr. Trump himself may enter.

The House Select Committee is currently investigating Mr. Trump’s actions and those of his advisors during the period leading up to Jan. 6. On that day, a pro-Trump mob invaded the U.S. Capitol aiming to overturn the 2020 election result as Congress tallied electoral votes.

Mr. Biden might have sided with Trump to protect the greater prerogatives and powers of the presidency.

” Presidents are motivated to increase their power and protect their discretion while also preventing any attempts by adjoining branches to interfere in their affairs,” states William Howell (a University of Chicago political scientist). So there is a history of presidents seeking to expand their executive power because it serves the collective good. But in this battle, Trump’s critics, including the Biden White House, have concluded that executive privilege shouldn’t apply. This privilege is meant to protect the president’s ability to freely confer with his aides. However, it does not exist in the Constitution. The Supreme Court has argued that executive privilege is covered by the doctrine of separation, although it has acknowledged exceptions.

Sen. Sam Irvin looks over a subpoena intended for President Richard Nixon, July 23, 1973. Nixon attempted to invoke executive privilege in Watergate to prevent him from handing over the incriminating material. The Supreme Court rejected his claim and ruled there were some exceptions.

Watergate, the Iran-Contra scandal, and 9/11 all triggered exceptions to executive privilege. The presidents in question voluntarily gave over the documents. However, during Watergate, Nixon refused to hand over tape recordings. This led to a Supreme Court decision that limited a president’s executive privilege claim.

The Bannon case has been the most prominent House panel action. His case will be sent to the Department of Justice for criminal prosecution if Mr. Bannon is found guilty of contempt. His lawyer claims that Mr. Bannon is refusing to give testimony and documents in response to a directive given by Mr. Trump. Trump is seeking executive privilege, even though he is a former president. The fact that Mr. Bannon was only an informal adviser to Mr. Trump, having left the White House in 2017, may further weaken the claim of privilege.

However, the Biden White House handled the massive Jan. 6 request to the National Archives of Trump-era records has caused some concern. The Presidential Records Act protects presidents’ records for five years from the date they leave office. Ex-presidents are allowed to weigh in and make exceptions. However, the president of the United States can only invoke executive privilege in writing to stop documents from being released.

On October 8, President Biden refused to endorse Mr. Trump’s request to withhold documents of the Jan.6 committee. It is now over. Some believe he might regret his decision.

“This precedent is too dangerous to ignore,” Jonathan Turley of George Washington University, a professor in constitutional law. Presidents support the privilege claims made by their predecessors, out of self-interest and office.

If Donald Trump is elected again or if an ally of Trump wins, there are good chances that the Biden archives will be considered fair game. The current political wrangling takes place amid fierce partisanship. This is the result of intense partisanship. Lawsuits could bog down the committee’s work, conceivably until the November 2022 midterms, which could well usher in a House Republican majority and the end of any congressional effort to address the events of Jan. 6.

Some legal observers have suggested that a Trump lawsuit could backfire on him, if documents come to light containing evidence of criminal conduct on or before Jan. 6. But others believe that Mr. Trump doesn’t have anything to lose by proving his executive privilege claim before a court.

“He is not the President,” states Saikrishna Prakash of the University of Virginia’s law school. If you lose an executive privilege case as president, you are unable to claim privilege during the remainder of your term .”

He also said, “It doesn’t matter if Trump asserts privilege and then loses it, then it jeopardizes his privilege claims for the second term.

The risk that the Democratic-run Congress takes is to vote to keep recalcitrant witnesses under contempt. Nothing comes out of it.” That has happened in many past cases of contempt of Congress, including in 2012, when former Attorney General Eric Holder failed to turn over documents related to the Fast and Furious “gun-walking” scandal.

On paper, defying a congressional subpoena is punishable with a fine and up to 12 months in jail. In general however, there is no law that can be applied to conflicts between Congress or the executive branches. His Justice Department will not prosecute if the case is involving a president or his administration. Other times, the courts will rule that the case is not political enough to warrant a judicial remedy.