On Friday (updated Saturday), Just the News posted an article about the claim of Executive Privilege being used to prevent Congress and the American public from hearing the tapes of President Biden’s recorded interviews with special counsel Robert Hur. Executive privilege is supposed to apply to discussions within an administration between members of an administration regarding sensitive subjects. Obviously these interviews were related to a criminal investigation that had nothing to do with Presidential discussions or policies.
The article reports:
President Joe Biden’s attempt to assert executive privilege over the tapes of his interview with federal investigators in his own classified documents case could run into the history of Democratic tactics to obtain information from former President Trump.
For example, recent court decisions surrounding Trump’s efforts to invoke executive privilege over subpoenaed documents by the Jan. 6 Select Committee confirmed a legitimate congressional investigation is often a strong basis for requesting documents or information from the executive. Though, Biden’s current control of the executive branch may allow him to stonewall successfully.
On Thursday, President Biden invoked executive privilege to prevent his Department of Justice from turning over tapes of his recorded interviews with special counsel Robert Hur to the House Oversight and Judiciary Committees. The decision came after Attorney General Merrick Garland recommended that course of action to prevent damage to future law enforcement efforts.
Executive privilege is a loosely defined tradition that has existed since the founding of the country which allows a president to protect certain communications and documents in a presidential administration from disclosure to the other branches of government. However, the seemingly broad nature of these powers have faced limits, including when the materials are requested for criminal investigations as during the Nixon-era Watergate scandal.
As Robert DuChemin stated in the RADLaw Newsletter:
There are two reasons for not releasing the video. Either the transcript is not the real transcript or Joe looks so bad that the AG knows its release will sink Joe’s chance of re-election. I am betting on the former, but it could be both.
The article concludes:
In the upcoming legal fight, the Supreme Court may finally have to determine the limits of executive privilege in light of congressional subpoenas. The high court has yet to rule on the constitutionality of an assertion of executive privilege in this context as part of a congressional investigation, Just the News previously reported.
The last time any court considered such a claim came during the Nixon Watergate investigations, but it never reached the high court. In the case of Senate Select Committee v. Nixon, the D.C. District Court refused to enforce a subpoena from the Senate Watergate Committee, but only because it believed any disclosure of the materials to the committee would imperil the Special Prosecutor’s work—criminal investigations into the scandal. The Court of Appeals for the District of Columbia affirmed the lower court’s decision.