Executive privilege is not in the Constitution, but it is a tradition of the White House. A seal on the records of meetings, minutes, and correspondence of private happenings in the White House to last at least five years after their term has protected many presidents over the years. The previous major challenges to it have been Watergate and September 11th, when the Supreme Court ruled that executive privilege could not shield the release of Oval Office tapes sought in criminal investigations.
Biden’s White House has decided that the January 6th insurrection falls into that category and has released all records, recordings, and correspondence from the administration of Donald Trump relating to that matter. The records will be released to the congressional panel investigating the incident, in which a violent mob chanting about murdering members of the U.S. government stormed the U.S. Capitol Building in an attempt to stop the confirmation of President Biden’s election and reinstall Donald Trump as an illegal president.
“This committee is investigating a dark day in our democracy — an attempt to undermine our Constitution and democratic processes by the former president — and that context, I think, is important here, too,” White House press secretary Jen Psaki said of the congressional panel seeking the records.
Politicians, particularly those opposing the release, are concerned that it will erode the protection of executive privilege for presidencies going forward, including for President Biden. But law experts say that the extraordinary circumstances of the attack are in line with previous exemptions to the privilege, and therefore do no harm.
“By ratcheting up how extraordinary and extreme it is, it limits the precedent going forward,” said Jonathan Shaub, a former attorney-adviser in the Office of Legal Counsel in the Obama administration.
Donald Trump has formally asserted privilege over 50 specific documents, and the matter will likely involve a lengthy court battle.