The Memo: Trump case could come back to bite Biden

Opponents of former President Trump celebrated earlier this week after a federal judge rejected his attempt to withhold documents from the House committee investigating the Jan. 6 insurrection.

But that could end up becoming a case of “be careful what you wish for.” 

The ruling — and the case in general — could easily weaken the ability of a past president to protect confidential discussions. This, in turn, could have big real-world effects.

In today’s hyperpolarized political environment, it is easy to imagine a future Republican president and a GOP-majority Congress weaponizing the exact same logic to embarrass a Democratic predecessor — or hobble upcoming rivals who had served in a past administration.

The Trump case is still making its way through the legal system. 

Late Thursday, a three-judge panel for the D.C. Circuit Court of Appeals granted Trump a last-minute temporary injunction. That means he won’t have the contested records released for the moment, even though President Biden has taken the rare step of waiving his predecessor’s claim that those documents are privileged. 

Many experts believe the legal struggle is destined to end up before the Supreme Court.

The implications of the current battles, one way or another, are huge.

“If you think about yourself in Biden’s position, he has got to understand that not only is he the guardian of the executive branch … but at some point he will be out of office,” said Steven D. Schwinn, a professor at the University of Illinois Chicago Law School and an expert on constitutional law. “The precedent he is setting now is opening the door to a future president doing the same thing.”

That principle, Schwinn argued, should theoretically lead to a president making “thoughtful decisions.” But he acknowledged such an outcome was by no means certain. 

Trump himself, Schwinn asserted, had been driven almost entirely by “raw politics” in his decisionmaking, and a future president could behave in the same fashion.

Legally, the core of the matter in the Trump case is executive privilege.

The concept recognizes that a president needs unvarnished advice while in office and that aides might be constrained from giving such advice if they know their deliberations could be made public soon afterward.

Executive privilege is neither absolute nor permanent. Legal precedent recognizes that it must be balanced with the right of Congress to obtain information that it needs to conduct its business. A past president generally loses the ability to restrict the public release of information 12 years after leaving office.

In the current case, Trump has asserted executive privilege to withhold hundreds of pages of records from the Jan. 6 committee. 

The exceptional nature of the case has led Biden to argue that the broader interests of the nation are being served by the investigation — and that those interests supersede any claim of privilege.

Millions of Americans agree with him. 

But the choice — and the judge’s ruling upholding it — has revealed the degree of which the process is wide open to partisan weaponization.

Judge Tanya Chutkan, who ruled against Trump on Tuesday, noted that an incumbent president “is not constitutionally obliged to honor” a predecessor’s wishes when it comes to executive privilege.

Chutkan’s ruling raises other red flags about where the nation may be headed.

She pushed back against the idea that a court could review individual documents to determine whether a claim of privilege was valid, suggesting a claim of privilege should be upheld or rejected in total. In practical terms, that could grant Congress access to whatever it wanted.

Chutkan did acknowledge that Congress needs to prove such requests must have “a valid legislative purpose.” Merely furthering an investigation is not enough; Congress needs to be contemplating some change in the law.

But Chutkan’s ruling also presents the concept of a “valid legislative purpose” extremely broadly. 

Congress does not need to say in advance what laws it is contemplating. Its purportedly legitimate purpose could be met in this case by “other forms of legislation not currently imagined.” And it does not necessarily have to produce any proposed legislation at all.

In other words, a request for a president’s records could be justified on the basis that Congress says it is contemplating unspecified legal changes that might or might not happen.

How would Democrats feel about Biden’s privileged records, or those of former President Obama, being procured by a future Republican majority on that basis?

Paul Rosenzweig, a lecturer at The George Washington University School of Law, argued that, in a normal world, it would be widely accepted that the events of Jan. 6 were so aberrational that they require special investigation — and, therefore, that legal arguments made in this case should not be applied later to other, more obviously partisan matters.

“But it is an open question, sadly, whether or not we are in a normal world,” added Rosenzweig, who served as senior counsel to Kenneth Starr during the Whitewater investigation. “If we keep defining our standards down, do we wind up at the bottom of the hill?”

Responses to the current case are, of course, driven by outrage at the events of Jan. 6 and by the deeply polarized views of Trump.

The public view of the case, especially as expressed on social media, also tends to throw every element of the case into one stew. 

The broad issue of whether Trump’s documents are privileged, for example, is almost entirely separate from a far more contentious idea, advanced by Trump allies, that someone like Stephen Bannon can invoke executive privilege to avoid testifying to the committee about his dealings with the then-president. The latter claim is derided by many legal scholars, who note Bannon was a private citizen at the time.

Some experts also contend that the dangers in the current situation are fairly slight — or that they pale in comparison with the possibility that Trump can frustrate due process by playing for time in the hope that the GOP takes back the House next year and ends the probe.

Mark Rozell, a constitutional law expert and the founding dean of the Schar School of Policy and Government at George Mason University, demurred when asked about whether the whole concept of executive privilege might be hollowed out by the current proceedings.

“I would not say ‘hollow out,’ as much as put parameters around its appropriate exercise by a former president,” Rozell said. Alluding to Trump’s position, he added, “a bad claim of executive privilege does not weaken the principle itself.”

That might prove true. 

But in an era when American norms have proven far more fragile than many people thought, the current battle could echo far into the future — and snap back to hurt Democrats, including Biden himself.

The Memo is a reported column by Niall Stanage.