The Executive-Privilege Paradox

The Biden administration isn’t going to fight Congress over January 6 documents. That’s a good thing for the presidency.

Illustration of Donald Trump and Joe Biden
Daniel Acker / Bloomberg / Getty; Chip Somodevilla / Getty; The Atlantic

About the author: Kate Shaw is a professor of law at the Benjamin N. Cardozo School of Law.

Late last Friday, the Biden administration did something that was, in a way, surprising. Across many years and multiple administrations, presidents have jealously guarded the executive branch’s prerogative to withhold certain categories of information from Congress—as well as from the courts and the public—insisting that executive privilege is both constitutionally grounded and essential to the separation of powers. But the Biden administration decided to go against that norm, announcing that it would not invoke executive privilege to block the release of White House documents requested by the House Select Committee to Investigate the January 6th Attack on the United States Capitol.

The letter announcing the decision, from White House Counsel Dana Remus to the archivist of the United States (in whose custody the documents reside), explained that President Joe Biden “has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents.” A second letter, released by the White House Wednesday night, acknowledged that former President Donald Trump had informed the archivist that he wished to assert executive privilege over the requested documents, but that after due consideration, Biden adhered to his original determination. This clears the path for the documents’ release to the committee, although Trump may still attempt to use the courts to block—or at least delay—the committee’s access.

In its strongest form, the argument for executive privilege holds that it is necessary to the president’s discharge of the constitutional duty to “take care that the laws be faithfully executed.” Because few executive-privilege disputes reach judicial resolution, the practice and precedents of the political branches form the backdrop against which future disputes play out. At first blush, then, the decision to allow congressional access to these documents—some of which likely reveal the details of presidential conversations and decision making, exchanges that executive-branch lawyers typically view as covered by an especially strong form of executive privilege—appears to be at odds with the executive branch’s long-term institutional interest in retaining the ability to assert executive privilege.

But that’s not the right way to understand the Biden administration’s decision. Its decision is actually consistent with the principles and purposes that underlie executive privilege—principles that receded in the Trump administration, as the executive branch adopted a posture of complete defiance of congressional demands for information. The determination here is both faithful to the purposes of executive privilege, and also an important instance of constitutional course correction—one that confirms the role of legitimate congressional oversight in our scheme of separated powers.

First, despite its importance and constitutional foundations, executive privilege is far from absolute; indeed, in the very case in which the Supreme Court first recognized the privilege and pronounced it “fundamental,” the Court went on to unanimously order President Richard Nixon to turn over the Oval Office tapes he sought to withhold. Deciding whether to make or sustain a claim of executive privilege always requires balancing the need for confidentiality against the countervailing need for the requested material.

Just as the Court in United States v. Nixon found the need for evidence in the context of an ongoing prosecution weightier than the president’s generalized interest in confidentiality, previous presidents have made the same determination in the context of various important investigations. President George W. Bush granted the 9/11 Commission access to hundreds of sensitive President’s Daily Briefs from the Bush and Clinton administrations; that commission also received testimony from Bush and Vice President Dick Cheney. During the Iran-Contra investigation, President Ronald Reagan made numerous executive-branch officials and documents available to the committees investigating the affair, and even went so far as to turn over his personal diaries.

In the context of the January 6 investigation, the legislative interests are unusually compelling and consequential. The committee’s mandate is to investigate and report on the events of January 6 and their causes, with a goal of preventing “future acts of violence, domestic terrorism, and domestic violent extremism, including acts targeted at American democratic institutions.” The Remus letter references the “unique and extraordinary circumstances,” and emphasizes the “Committee’s need to understand the facts underlying the most serious attack on the operations of the Federal Government since the Civil War.”

A second factor that both supports the decision and suggests that it will not weaken executive privilege more broadly is the fact that some of the requested documents likely contain evidence of serious misconduct or wrongdoing. The Remus letter, which conveys familiarity with the requested documents, references an “assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them.” It also explains that “the Documents shed light on events within the White House on and about January 6,” and concludes that “the constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”

The executive branch has long taken the position that serious allegations of executive-branch wrongdoing undermine if not vitiate the privilege. As the current acting head of the Office of Legal Counsel, Dawn Johnsen, wrote in a law-review article in 1999, “where a President asserts executive privilege in order to hide evidence of illegal acts or other wrongdoing by high level executive officials, the assertion is illegitimate.” Although the Supreme Court hasn’t squarely addressed this issue, some relevant judicial authority does exist. In the 1974 Senate Select Committee case, in which the D.C. Circuit denied access to White House tapes to the Senate committee investigating Watergate, the court nevertheless emphasized that “the Executive cannot … invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing.” More recently, the same court explained that at least one strain of executive privilege, the deliberative-process privilege, “disappears altogether when there is any reason to believe government misconduct occurred.” The court in that case found that another strain of executive privilege, the presidential-communications privilege, does not disappear upon an allegation of misconduct, but can be overcome with a specific showing of “why it is likely that the subpoenaed materials contain important evidence and why this evidence, or equivalent evidence, is not practically available from another source.”

There is already significant evidence, both public and likely in the committee’s custody, that President Trump was engaged in an effort to promote a false narrative of widespread voter fraud, undermine the election’s results, and ultimately delay or prevent the final stage in the Electoral College process for confirming Biden as the next president. Additional evidence of his efforts emerges by the day. It is difficult to imagine a more serious act of presidential misconduct than a protracted effort to subvert the results of a presidential election. But many specifics of Trump’s activities on January 6 remain unknown, and the committee has no obvious other route to obtaining that information. Under these circumstances, no interest in concealing such conduct could possibly outweigh the congressional and public interest in disclosure.

In addition, although the picture of Trump’s activities over the course of January 6 remains murky, there’s a strong argument that both at the rally that preceded the attack on the Capitol, and in the hours afterward, Trump was acting in a way that is best understood as outside the scope of his official duties. Drawing a line between the “official” and “unofficial” acts of a president is surely a difficult task, and it’s not a line that courts have typically used in cases implicating executive privilege. But in related contexts, the Supreme Court has rejected presidents’ efforts to shield themselves from ordinary legal process. The Court in Trump v. Vance rejected Trump’s efforts to protect his financial records from release to the Manhattan district attorney, explaining that it was refusing to “extend protection designed for official documents to the President’s private papers.” The Court treated President Bill Clinton’s efforts to delay his response to Paula Jones’s civil lawsuit similarly, largely because the “alleged misconduct” was “unrelated to any of his official duties as President.” However else we might characterize a scheme to attempt to cling to power after losing an election, it does not fall within the scope of a president’s official duties.

Taken together, these circumstances warrant the unusual step of declining to assert executive privilege. They are also distinct enough that they can coexist with a strong commitment to executive privilege under ordinary circumstances.

Finally, some may see the Biden administration’s move as purely political—handing Trump’s documents to a Congress controlled by Democrats—and one that could “come back to haunt” Biden if and when his administration faces a hostile Congress. This too misses the mark. First, the January 6 committee is bipartisan; that fact both complicates the partisan-collusion narrative and provides an important way to distinguish this case from any purely partisan efforts to access White House information. In addition, the Biden administration has shown itself quite willing to assert various privileges to protect the information of previous administrations, including a DOJ memo related to former Attorney General Bill Barr’s determination that Trump had not obstructed the Mueller investigation, and, just last week, testimony regarding Bush-era detention and interrogation, which the Biden administration argues remains shielded by the state-secrets privilege.

Trump may yet file suit to protect these documents. If he does, existing authority suggests that Biden’s views should prevail. As the Supreme Court has explained, “the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” The point here is that executive privilege protects the institutional presidency, not any individual president’s interests, and there’s no reason to believe Biden is not acting in the institutional interests of the presidency. Indeed, an overly broad or aggressive assertion of privilege, where all relevant criteria tilt against its existence, would risk a ruling that cuts the privilege back. So perhaps that’s what’s most surprising of all: In this case, declining to assert the privilege may not only promote a healthy balance of powers—it may be the best way to protect the privilege itself.