The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 with regard to a random person. Rather, Biden exercised his legal authority with regard to his most likely opponent in the 2024 election. Biden's decision to permit the congressional investigation of the 2020 election's aftermath will invariably affect the 2024 election. Or more precisely, the decision to decline executive privilege will likely result in the release of documents that may harm Trump, and potentially expose him to civil or criminal liability.
During Biden's decision-making process, he likely considered–at least at some level–how his choice concerning executive privilege would affect his re-election campaign. Politicians are unable to separate the exercise of their power from the next election. Indeed, the risk of appearing to punish his future opponent may have given Biden some pause to publicly disagree with Trump's claims. But ultimately, Biden went ahead with his choice.
Nearly two years ago, I wrote the following two sentences in the New York Times:
Politicians routinely promote their understanding of the general welfare, while, in the back of their minds, considering how those actions will affect their popularity. Often, the two concepts overlap: What's good for the country is good for the official's re-election.
Of course, I was writing about President Trump's first impeachment for abuse of power. The article charged that Trump requested information from the Ukrainian President about Hunter Biden for Trump's"personal political benefit rather than for a legitimate policy purpose."
In the Times, I wrote:
Politicians pursue public policy, as they see it, coupled with a concern about their own political future. Otherwise legal conduct, even when plainly politically motivated — but without moving beyond a threshold of personal political gain — does not amount to an impeachable "abuse of power."
Over the next three years, President Biden will have to make many choices that will directly affect his likely opponent. For example, his administration could choose to charge Trump with inciting a criminal insurrection. (Seth Barrett Tillman and I wrote about that choice here). Or his administration may take a legal position on whether Trump is disqualified pursuant to Section 3 of the Fourteenth Amendment. (Seth and I wrote another paper on Section 3 that will be released, shortly). These difficult choices very well could keep Trump off the ballot. Biden would no doubt say he was acting to promote the common welfare. And his supporters–and Trump critics–would likely agree with him. But no individual politician has a monopoly on defining the general welfare. That concept will always be contested.
In these hypothetical circumstances, I do not think Biden would engage in an abuse of power. But many Republicans who felt burned by the first impeachment trial will view the circumstances differently. They will see that President Biden is using his official power to harm his political opponent–in much the same light that Democrats viewed Trump's conduct with respect to Hunter Biden. If the Republicans take the House in 2022, we may see yet another impeachment proceeding for Biden's use of his powers in such a way that harms Trump. In 2020, I warned there was a risk of adopting the abuse of power theory. Soon, we will see the consequences of that decision.