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

The gauntlet has been thrown down. The House panel investigating the Jan. 6 riot at the U.S. Capitol plans next Tuesday to recommend criminal charges against Steve Bannon – a onetime adviser to former President Donald Trump – for not complying with a congressional subpoena.

Thus will launch the next phase of a brewing clash between President Joe Biden and former President Trump over “executive privilege” – a loosely defined concept that applies to the president and top White House aides, and has rarely been tested in court. 

It is a fight that could reshape the presidency permanently, as another norm is eroded: the practice by a sitting president of protecting the confidentiality of his predecessor’s communications with advisers. 

The risks involved are great. President Biden could lose his own confidentiality protections once he leaves office. And Congress could be revealed as toothless by issuing subpoenas that ultimately go nowhere.

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, among its lines of inquiry, is investigating the actions of Mr. Trump and his advisers in the run-up to and on 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 could, in theory, have aligned himself with Mr. Trump in protecting the larger prerogatives of the presidency.  

“All presidents have powerful incentives to expand their power, guard their discretion, and block efforts by the adjoining branches to meddle in their affairs,” says William Howell, a political scientist at the University of Chicago. “So there’s a long history of presidents trying to build up an expansive notion of executive power, because it plays to their collective benefit.” 

But in the current battle, the extraordinary events of Jan. 6 have led Trump critics – including the Biden White House – to conclude that executive privilege should not apply. Such a privilege, seen as protecting the ability of a president to confer freely with aides, does not appear in the Constitution. Rather, the Supreme Court has asserted that executive privilege falls under the doctrine of separation of powers, though the court has recognized exceptions.

Watergate, the Iran-Contra scandal, and 9/11 all triggered exceptions to executive privilege. In the latter two instances, the presidents involved voluntarily turned over documents. But during the Watergate scandal, President Richard Nixon resisted handing over tape recordings, resulting in a Supreme Court ruling that established a precedent limiting a president’s ability to claim executive privilege. 

The Bannon case is the House panel’s highest-profile action to date. If Mr. Bannon is held in contempt, as expected, his case goes to the Department of Justice for possible criminal prosecution. Mr. Bannon’s lawyer says his client, in refusing to provide testimony or documents, is acting on a directive from Mr. Trump, who is trying to claim executive privilege even as 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.

But the way the Biden White House has handled the Jan. 6 committee’s expansive request to the National Archives for Trump-era documents has raised some eyebrows. Under the Presidential Records Act, a president’s records are shielded for at least five years after leaving office. Exceptions can be made, and former presidents can weigh in on such requests. But under a later executive order, only the current president can formally invoke executive privilege to prevent documents’ release. 

On Oct. 8, President Biden declined to support Mr. Trump’s request to withhold documents from the Jan. 6 committee. The die has been cast. Some say he may come to regret that decision. 

“This is a dangerous precedent to discard,” says Jonathan Turley, a constitutional law professor at George Washington University. “Presidents have largely supported the privilege claims of their predecessors out of interest, not only of their office but also self-interest. Current presidents will eventually become past presidents.” 

If Mr. Trump becomes president again, or even if a Trump-allied Republican wins, chances are high that the Biden archive will be seen as fair game. 

The current wrangling comes amid intense partisanship. The House select committee is itself the product of a political impasse: The original bipartisan effort to form a committee fell apart, and Democratic House Speaker Nancy Pelosi ended up naming all nine members – seven Democrats and two Republicans, Liz Cheney of Wyoming and Adam Kinzinger of Illinois, both of whom had voted to impeach Mr. Trump for “incitement of insurrection.” 

Mr. Trump said in an August statement that “executive privilege will be defended,” a suggestion that he will sue – though he has yet to do so. 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 say Mr. Trump has nothing to lose by testing the executive privilege claim in court.

“He’s not the president,” says Saikrishna Prakash, a professor at the University of Virginia law school. “When you’re president and you lose an executive privilege case, it affects your ability to claim privilege for the rest of your term.”

He adds, “I don’t think Trump is going to care about asserting privilege, losing, then jeopardizing his privilege claims in a second term.” 

For the Democratic-run Congress, the risk is that it votes to hold recalcitrant witnesses in contempt, and nothing comes 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. But in general, the law is toothless in conflicts between Congress and the executive branch. If a case involves a member of the president’s administration, his Justice Department won’t be inclined to prosecute. In other instances, courts have concluded that the matter is political and not requiring a judicial remedy.