Editor’s note: David Orentlicher is the Jack and Lulu Lehman Professor of Constitutional Law and Health Law at the William S. Boyd School of Law at the University of Nevada, Las Vegas, and a Democrat in the Nevada State Assembly. The opinions expressed in this op-ed are Orentlicher’s own. Further comments On CNN.
CNN
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Attorney General Merrick Garland appeared before the House Judiciary Committee on Tuesday amid a flurry of Republican criticism over his refusal to turn over audio tapes of his interviews with Special Counsel Robert Hur, even though President Joe Biden had invoked executive privilege to keep them classified. The House committee has already found Garland in contempt of court for concealing the tapes, and a vote on the full House could come soon.
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David Orentlicher
“The Biden administration has been working to ensure that Biden is protected from the criminal investigation and is prepared to continue to pursue the matter,” Biden said in a statement.
Hoare’s investigative report painted a blemish on the president. Hoare explained that if the president decided to indict Biden, jurors would view him as a “sympathetic, well-meaning old man with a failing memory” and give him the benefit of the doubt. In response, Biden released the transcript but withheld the audio tape. CNN argues that the transcript is “no substitute for the audio recording” and is suing to obtain the audio tape.
While Garland’s assertion of executive privilege on Biden’s behalf is not flawless — having released the records makes it harder for Biden to argue that the audio tapes should be privileged — the Judiciary Committee’s subpoena for the tapes is on shakier grounds.
One might wonder if Biden is trying to play double-cross on the issue of presidential protection. On the one hand, he is strongly asserting executive privilege when it comes to access to information. On the other hand, he is denying executive privilege claims made by former President Donald Trump in a classified documents case involving documents he took from the White House to his Mar-a-Lago, Florida, home after leaving office. The case is currently in pretrial proceedings in U.S. District Court in Miami, but a trial date has not yet been set.
While it may seem hypocritical for Biden to seek protection for himself over Trump, there are good reasons to distinguish between the two situations. In particular, Trump hopes to avoid criminal prosecution by arguing that many of the documents are private, rather than public. Moreover, it is uncertain whether Trump, as a former president, can claim executive privilege. Rather, it is argued that a sitting president can decide whether to assert executive privilege on behalf of his predecessor or waive the privilege, as Biden did for Trump.
Not only is Biden asserting executive privilege as a sitting president, he is also immune from criminal prosecution and is now hoping to stop members of Congress from improperly interfering with executive branch operations, but he is also asserting a narrower privilege in releasing the records than the broader one asserted by Trump.
While claims of executive privilege typically arise when a president wants to keep his conversations with aides or other discussions confidential, Biden’s claim is based on the executive branch’s interest in preserving the confidentiality of law enforcement proceedings. As Garland noted, the disclosure of information obtained in a criminal investigation could undermine the integrity of the law enforcement process. If the audio tapes were subpoenaed in this case, witnesses in future cases could hesitate to speak to authorities, for example, out of concern that these conversations might be made public. To be sure, Biden has already made the records public, but the risk to future witnesses is much greater if testimony is subpoenaed by a politically motivated Congress than if it is voluntarily released by the executive branch.
Moreover, Biden’s suppression of the audio tapes was not solely motivated by executive privilege principles. A congressional subpoena for the audio tapes raises significant concerns about its impact on the separation of powers. Separation of powers concerns are heightened when Congress seeks information about the president, because if the president is a defendant, members of Congress are more likely to try to usurp the executive branch’s power to enforce the law, or they may use subpoena power for political purposes.
Thus, the Supreme Court has adopted special safeguards to strike the appropriate balance between the interests of those in favor and those against access to information when Congress subpoenas the President. And while executive privilege gives the President great reason to refuse a congressional subpoena, the Supreme Court has recognized that the President may protect even non-privileged information. Separation of powers concerns mean that the President cannot block a legitimate exercise of legislative power, but he can prevent an unjustified exercise of legislative power. Importantly, the burden is on Congress to justify access to the information it needs.
Particularly instructive are the guidelines issued by the Supreme Court in another case, ironically involving Trump: Trump v. Mathers, which dealt with a congressional subpoena for Trump’s financial records. A Democratic-controlled House committee sought the records as part of an investigation into the need for legislative reforms “in areas ranging from money laundering and terrorism to foreign interference in U.S. elections.” In that case, Trump did not argue that the records were protected by executive privilege.
Because the case raised new legal issues, the Supreme Court established guidelines that trial courts must apply when determining the validity of a congressional subpoena and remanded the case to a lower court to apply those guidelines. Ultimately, the lower court granted access to some of the requested records.
In its Mazars decision, the Supreme Court identified two important principles: first, the principles that apply to congressional subpoenas and, second, the principles that apply to subpoenas involving the President.
First, congressional subpoenas must serve a “legitimate legislative purpose.” Thus, Congress can gather information to better understand when and how to pass laws, to determine whether impeachment is warranted, or to carry out other responsibilities. But Congress cannot compel evidence to try someone for a crime. That’s a core function of the executive branch, and there is no “Congressional power to expose for the sake of exposure.”
Thus, a congressional committee cannot seek the tapes simply because it wants to justify lawmakers’ belief that Biden violated classified documents laws. Moreover, while Biden may have political reasons for withholding the tapes, such as fearing public disparagement as Election Day approaches, Congress would still need a nonpolitical reason to seek the tapes.
Second, even if there was a legitimate legislative purpose (House Republicans have cited multiple purposes for access to the Har tapes, including potential legislative reform of the use of special counsels to investigate presidents), any subpoena to the president must be limited in scope to the information truly needed and not available from other sources.
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Members of Congress therefore need to explain in detail, if necessary, to the court why the recording of Mr. Hur’s interview serves no legitimate legislative purpose and what they believe they can gain from the audio that cannot be obtained anywhere else. So far, they have not done so, as the Department of Justice stated in its denial of the subpoena. Ironically, releasing the recording would simultaneously weaken the argument for prioritizing the audio tapes and the argument for subpoenaing the tapes.
It is not surprising that congressional committees would overstep their authority and risk compromising executive power when issuing subpoenas to the president. As I have written before, the House January 6th Committee intruded into executive power in its work. In investigating the violent attack on the Capitol, the committee often acted as if it were conducting a grand jury investigation rather than a legislative investigation.
If a House committee wants to get information from the president, it can’t justify its desire for access by asserting a general interest in the information and subpoenaing potentially relevant records. It must be much more precise in justifying its desire for access than the committee seeking Biden’s audio tapes.
Updated for the latest news developments.
