Fortunately, Biden’s most significant decision about executive privilege so far has been to weaken it. In 2021, the House January 6 committee sought to obtain Trump White House records from the National Archives as part of its inquiry into the attack on the Capitol that year. As expected, Trump invoked executive privilege to try to block the documents’ release, only to be rejected by the courts. There were signs, however, that at least a few of the justices might be willing to embrace the idea that ex-presidents left office with some sort of presidential residue on them.
The Supreme Court’s order to decline to intervene handed Congress a victory but also effectively set aside the portions of the D.C. Circuit Court of Appeals ruling that had rejected the former-president theory by describing it as “nonbinding dicta.” Justice Brett Kavanaugh went even further in a statement attached to the order. “A former president must be able to successfully invoke the presidential communications privilege for communications that occurred during his presidency, even if the current president does not support the privilege claim,” he wrote. “Concluding otherwise would eviscerate the executive privilege for presidential communications.”
If that’s the case, then Biden should use the next two years to see just how much executive privilege the courts are willing to stomach. When the courts reject his claims, he will have set clearer boundaries on when and how future presidents can invoke it. And if the courts side with him, then he was right all along. Naturally, this doesn’t mean that Biden should stonewall legitimate investigations or decline to hand over materials that are unequivocally in the public interest. But if he senses even a hint of bad faith from a GOP inquiry, then he should at least use it as a vehicle to limit future claims of executive privilege. Making it harder for presidents to evade accountability from Congress, after all, is also in the public interest.