Legal Boomerang? Biden attempt to hide tapes to collide with precedent from past Democratic probes

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.

Both the Judiciary and Oversight Committees on Thursday voted to hold Garland in contempt for refusing to turn over the subpoenaed tapes despite the president’s assertion.

However, President Biden’s attempts to prevent the Republican-led committees from obtaining the tapes may run into case law established as a result of his own party’s pursuit of his predecessor’s records. During Trump’s tenure, and after he left office, Democrats in the House sought to obtain both personal financial records as well as memos and documents related to January 6 as part of a congressional investigation. In both of these cases, Trump attempted to invoke executive privilege to deny the investigators access to the materials.

After the January 6 riot and Trump's departure from the White House, the House Democrat’s January 6 Select Committee subpoenaed a variety of records to investigate Trump’s actions and intentions leading up the that day. The committee requested speech drafts, handwritten notes, visitor and call logs, and files of senior aides and the president.

The National Archives said it found 750 pages of records responsive to the request, but former President Trump intervened, claiming executive privilege over the documents through the often cited communications privilege.

The D.C. Circuit Court ultimately decided that the documents or requested communications could be disclosed to Congress under a subpoena if the executive reasoned a release would be in the interest of the United States, if significant interest was demonstrated—especially in extraordinary circumstances—and that a valid and duly established congressional inquiry exists. When challenged to the Supreme Court, most of the Justices agreed with the lower court in principle, but refrained from adopting all its reasoning as its own. But, for now, the ruling stands in the lower court, making it a precedent against which future claims will be measured.

In Biden’s case, the House Republicans have established a legitimate congressional inquiry after approving an official impeachment probe into the president. Their legislative purpose mirrors the January 6 Select Committee’s investigative purposes.

However, in Biden’s case, he controls the executive and therefore the court may decide whether or not the legitimate congressional inquiry outweighs the justifications Garland gave for recommending the president withhold the tapes.

Indeed, Republicans have already indicated that they will take Biden to court over his assertions of privilege.

“It's very possible that this will end up in court," Cline said on Thursday evening on the "Just the News, No Noise" TV show. "We anticipate a committee vote and then potentially a House floor vote this week.”

During Trump’s tenure, congressional Democrats also doggedly pursued the former president’s private tax returns, requesting them through two separate committees and sparking legal battles. The House Democrats ultimately received the tax returns as requested.

However, one of the attempts at securing the financial records was thwarted by the Supreme Court, which ruled the legislature’s request would have to be evaluated by a lower court for four criteria: whether there is a legitimate legislative purpose, a narrowly tailored subpoena, evidence of legislative purpose, and scrutinize the burdens imposed on the executive to ensure no “ institutional advantage” is granted to a rival branch of government.

Congressional Republicans, in their quest for the Hur tapes, may have to submit their subpoena for such evaluation by the courts. However, the Trump tax case rulings applied to requests for personal records, which the Hur tapes are not—another distinction between the scenarios.

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.