President Biden’s Choice To Decline Executive Privilege Before Trump v. Thompson
On Thursday, the D.C. Circuit decided Trump v. Thompson. Co-blogger Jon Adler wrote about it here. I haven’t yet had a chance to review the lengthy discussion of executive privilege. Here, I want to address an important decision leading up to the case.
Earlier this year, the January 6 committee requested certain documents from the Archivist of the United States. Specifically, the committee sought former-President Trump’s records concerning January 6, other records concerning Trump’s claims about election fraud, and other documents. Trump asserted executive privilege over some of the documents. However, President Biden declined to assert executive privilege of those documents. Here is an excerpt from the White House Counsel’s letter to the Archivist:
After my consultations with the Office of Legal Counsel at the Department of Justice, President 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. As President Biden has stated, the insurrection that took place on January 6, and the extraordinary events surrounding it, must be subject to a full accounting to ensure nothing similar ever happens again. Congress has a compelling need in service of its legislative functions to understand the circumstances that led to these horrific events.
Here, the President made a decision based on what he thought was in the country’s best interests, as is his right. Still, I think this choice was more complicated that people might appreciate. Biden was not simply taking a position wit
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