By Richard Painter and Claire O. Finkelstein / Special To The Washington Post
In two recent federal appellate court cases, the Biden administration is protecting the Trump administration’s assertions of executive privilege to prevent information from reaching Congress and the public. One case involves keeping secret a 2019 Justice Department memorandum about the legality of indicting Donald Trump while he was president. The other involves a Congressional subpoena of Trump’s communications with his White House counsel.
The new administration has set itself on a well-worn path: that of trying to protect the power of the executive branch at the cost of transparency. This administration is far from alone. When the White House changes hands, preservation of presidential privilege continues because of implicit understandings between presidents, even of opposite political parties, that each successive president will prioritize the power and secrecy of the office.
But this has meant that multiple administrations from both parties have been determined to deprive Americans of the information needed to hold presidents and other executive branch officials accountable for their actions; accountability that is essential to protecting the rule of law and democratic governance.
Presidential privilege is a judicially created legal doctrine that has no explicit foundation in the Constitution. Federal courts’ enthusiasm for the concept has been tepid at best, particularly when faced with evidence of presidential wrongdoing. The Biden Justice Department has elected to compromise efforts to hold the former president accountable for potentially grave misdeeds simply for the sake of defending a contentious legal claim whose primary purpose is to protect the ability of the executive branch to defend its power.
The administration has ceded some ground in both cases, but not enough to ensure accountability. Following an order by U.S. District Judge Amy Berman Jackson, the Justice Department released part of the 2019 memo, prepared by the Office of Legal Counsel to address the department’s decision not to indict President Trump for obstruction of justice. But the department has decided to appeal Jackson’s order to release the entire memo, siding instead with the Trump administration’s claimed right to keep it secret.
In the other case, the department has agreed to allow former White House Counsel Donald McGahn to testify before the House Judiciary Committee, the result of a settlement of a lawsuit filed by the committee to enforce a subpoena it issued during the first Trump impeachment trial. But while the department has agreed not to assert presidential privilege with regard to any testimony McGahn may provide that is already known to the public, it will continue to assert the privilege where the testimony might reveal something new.
The willingness of the administration to take up the claim of privilege in the McGahn case is particularly shocking, given that Trump’s assertion of “testimonial immunity” was manifestly motivated by the attempt to protect his own wrongdoings from scrutiny in the face of an impeachment trial.
Unfortunately, using privilege or immunity doctrine to frustrate attempts at accountability is more the rule than the exception. A president who can shield his actions from public view can evade accountability in multiple forums, including impeachment, reelection, civil suits and criminal indictment. A president who controls the public narrative can exercise nearly complete control over the supposedly independent processes inherent in our constitutional design to check a runaway sovereign.
The result may be that a president with unfettered ability to assert various forms of presidential privilege can commit crimes with impunity. Given that some presidents may be inclined to commit crimes for the express purpose of remaining in office beyond what the law allows, affording heads of state such powers poses a unique danger to democratic governance.
Trump reminded us of this point this week in a brief his lawyers filed responding to a lawsuit brought by Rep. Eric Swalwell, D-Calif., regarding the events of Jan. 6, when a mob of violent insurrectionists stormed the Capitol building during the certification of the electoral college vote. Trump’s legal team argued that Trump has “absolute immunity” for the events of Jan. 6, given that he was acting in his capacity as president when he fired up the crowd beforehand. But inciting an insurrection is not among the president’s duties under Article II of the Constitution. Nor does President Biden’s sworn duty to faithfully execute his office require him to defend the presidential privileges and immunities of his predecessor in court.
The Biden administration is undoubtedly aware that, historically, the Justice Department’s approach has been out of step with the reception of assertions of presidential privilege and related doctrines in the courts. Recall the Supreme Court’s rejection of President Richard M. Nixon’s attempt to plead executive privilege to keep incriminating White House tapes out of the hands of special prosecutors, and Congress’s visceral reaction when Nixon used his “unitary executive” power to rid himself of Special Prosecutor Archibald Cox in the infamous “Saturday Night Massacre.” Recall also the Supreme Court’s rejection of President Bill Clinton’s claim that he was immune from having to testify in a civil suit against him brought by Paula Jones for sexual harassment. Federal appeals courts also rejected Clinton’s assertion of executive privilege to keep from federal prosecutors his communications with his White House counsel.
A similar assertion of presidential immunity went down to resounding defeat last year in Trump v. Vance, where the Supreme Court rejected the absolute immunity argument as a basis for Trump’s failing to turn over his tax returns to Manhattan District Attorney Cyrus Vance.
All of these decisions affirmed the principle that no president is above the law.
Not only are such assertions of presidential privilege or presidential immunity often found invalid in federal court, but they may actually violate the law: A president’s assertion of privilege to obstruct investigations may itself be an act of obstruction of justice when used for the sole purpose of avoiding scrutiny into his own potential misdeeds.
Presidents who protect their predecessors’ real or imagined ability to shield themselves from public scrutiny typically do so because they are hoping for similar protection from their successors, a form of self-dealing that undermines the integrity of the presidency and the democratic values every administration should be determined to serve. Biden can begin to push back on the ever-expanding institution of executive privilege by abandoning assertions of privilege on which his predecessor in the Oval Office insisted. He should make clear that the presidency is not a monarchy and that he endorses the profoundly democratic idea that presidential accountability to Congress and the American people is fundamental to the rule of law.
Kings achieve absolute rule by placing themselves above the law, preserving their powers, immunities and privileges not only for themselves but for their predecessors and successors. The president of the United States is not a king.
Richard Painter, a professor of law at the University of Minnesota, was the chief White House ethics lawyer for President George W. Bush from 2005 to 2007. He is a co-author, with Peter Golenbock, of “American Nero: The History of the Destruction of the Rule of Law, and Why Trump Is the Worst Offender.” Claire O. Finkelstein is the Algernon Biddle Professor of Law and professor of philosophy at the University of Pennsylvania, where she is the faculty director of the Center for Ethics and the Rule of Law.
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