President Donald Trump is trying to force Joe Biden’s former White House aides to divulge confidential discussions to congressional investigators — using the same tactics he once warned would “do grave damage” to the presidency and the republic.
Trump’s White House lawyers, in a series of recent letters to Biden aides, said the aides should provide “unrestricted testimony” to a House GOP-led investigation into Biden’s health and whether advisers covered up his frailty while in office.
To facilitate that testimony, Trump has agreed to “waive” any claims of executive privilege, the legal shield that presidents typically use to maintain the secrecy of candid conversations between a president and close confidants. That protection doesn’t expire when a president leaves office, but the incumbent president has the power to undo it.
Trump’s decision could leave Biden’s aides vulnerable to GOP lawmakers’ demands that they disclose some of the most sensitive details of their conversations with Biden — or risk being held in contempt of Congress and facing criminal charges.
It’s a dynamic Trump once decried when the roles were reversed: Biden, as president, authorized former White House aides from Trump’s first term to reveal confidential information to the House committee investigating the Jan. 6, 2021, attack on the Capitol and the monthslong campaign by Trump to subvert the 2020 election results. Now, in his second term, Trump’s White House hinted at that history as a justification for compelling Biden’s aides to testify.
“The President reached this view consistent with the practice established under the Biden administration,” read a letter from White House deputy counsel Gary Lawkowski to former Biden staff secretary Neera Tanden, who testified as part of the investigation last month.
Biden’s post-presidential office declined to comment on the unfolding investigation. The Trump White House declined to comment on the record, but a senior White House official, speaking on condition of anonymity, said the administration views Trump’s privilege waiver as less “dangerous” than Biden’s.
The probe into Biden’s health is being led by the House Oversight and Government Reform Committee, chaired by Rep. James Comer (R-Ky.), who dogged Biden for his final two years in office with an investigation into his family’s business dealings. Comer is now demanding testimony from many of Biden’s top White House advisers to determine whether Biden’s health declined while in office and whether anyone concealed any purported decline from the public. The investigation includes a review of whether aides ever acted on Biden’s behalf without his awareness.
Comer has said he views the handling of Biden’s health as a “conspiracy” and a “cover-up.” Democrats say the investigation is a politically motivated stunt to settle scores with Trump’s vanquished adversary. And they say the issue has diminished salience now that Biden has retreated from public life.
Even though Trump has waived executive privilege for the Comer probe, there are other avenues for aides to sidestep testimony. Kevin O’Connor, Biden’s physician while in office, cited doctor-patient confidentiality, but also his Fifth Amendment right against self-incrimination Wednesday in declining to answer the committee’s questions — a path well-worn by witnesses called to testify by Jan. 6 investigators. It’s unclear whether others called in the Biden probe will adopt O’Connor’s strategy.
Despite the procedural parallels, Biden’s choice to lift secrecy protections occurred under very different circumstances than Trump’s. Biden waived the privilege in order to assist the investigation of an unprecedented assault on the underpinnings of democracy. In contrast, Trump has waived the privilege in hopes of bolstering a roving exploration of Biden’s mental health based on claims, largely from Republicans, that Biden was cognitively incapable of making decisions as president.
Biden aides have dismissed those claims as unfounded. Still, numerous reports about Biden’s diminished capacity, and an entire book on the subject by two prominent journalists, have fueled the GOP push.
A dangerous precedent
Some constitutional experts see Trump’s privilege waiver as a troubling sign of a vicious cycle in which presidents of one party will routinely seek to disclose confidential conversations of prior administrations of the opposite party. Indeed, Trump himself warned of that cycle of vengeance when he opposed Biden’s waiver of executive privilege during the Jan. 6 probe.
If the trend continues, experts say it could lead presidential advisers to shy away from blunt or politically sensitive advice they fear could be disclosed by a political adversary.
“Presidential advisers now avoid as much as possible creating public records of their advice to presidents,” said Mark Rozell, an expert on executive privilege at George Mason University. “Waiving executive privilege will potentially make aides avoid being completely candid in their internal deliberations due to fear of disclosure and future investigations.”
Others are more circumspect, saying federal employees are already well-schooled in the principle that anything they say behind closed doors could wind up public — in investigations, in court or in leaks from their colleagues.
But Trump’s willingness to waive the privilege is dangerous for a different reason, according to Rebecca Ingber, a constitutional law scholar at Yeshiva University’s Cardozo Law School. His U-turn on the issue — despite the concerns he previously expressed about the importance of the privilege — is further evidence of his willingness to “simply destroy the norms that typically used to govern these inter-branch disputes,” Ingber said.
Peter Shane, a constitutional law expert at New York University, said “if Trump’s thirst for revenge overcomes his protectiveness of the presidency as an institution, I do think that is up to him.
“As for whether Trump has any political price to pay for contradicting himself,” Shane continued, “I can only say, he doesn’t seem to have paid any price so far for his inconsistencies.”
Trump’s dire warning
Executive privilege isn’t written in law or the Constitution, but it has roots stretching back to George Washington and was recognized by the Supreme Court during the Watergate scandal as an important — but limited — protection for the presidency. The idea behind the privilege is that secrecy is necessary for the president to receive candid advice to deal with the most sensitive and controversial subjects facing the nation.
Historically, even when the White House has changed parties, presidents respected the wishes of their predecessors to maintain the secrecy of records and communications — in part because they knew they would become former presidents one day and wished to preserve both their own records and the strength of the presidency itself.
That calculus changed after Trump orchestrated a nationwide push to overturn the results of the 2020 election, leading a campaign to undermine the certified results and assembling a rally that later morphed into a violent riot on Jan. 6, 2021. The Democrat-led congressional committee established to investigate the attack (after Republicans killed a proposed bipartisan commission) quickly pursued Trump’s records and interviews with his closest aides.
The unprecedented circumstances that caused the Jan. 6 attack are why Biden’s directive in late 2021 to waive executive privilege was upheld by the courts. Biden repeatedly waived the privilege over documents and testimony of Trump’s close advisers, saying the national urgency of understanding the root causes of the attack outweighed the need for executive branch secrecy.
Trump argued at the time that permitting congressional investigators to pierce the secrecy of his communications — even over a subject as weighty as Jan. 6 — would lead to a cycle of retribution by future presidents. He tried to get the courts to step in and keep his White House records concealed from investigators.
“It is naïve to assume that the fallout will be limited to President Trump or the events of January 6, 2021,” Trump’s attorneys argued at the Supreme Court. “In these hyperpartisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival.”
He warned that “if the privilege that covered one administration were to evaporate immediately upon the transition to the next, the privilege would be rendered all but worthless.” It would, his lawyers said, “turn executive privilege into a political weapon to be used against political enemies.”
But the courts concluded that the Jan. 6 attack was so momentous, and Congress’ need for Trump’s records so great, that executive privilege would have yielded even if Trump were the sitting president at the time.
Still, the Jan. 6 committee did not get all the testimony it wanted from Trump’s advisers. Stephen Miller refused to discuss “any conversations that he had with President Trump,” saying Trump had not waived executive privilege to permit him to testify. David Warrington, who at the time was an attorney representing Trump’s former White House personnel director, emphasized that Biden’s waiver of privilege was “pretty specific” and “not a broad waiver.” Miller is now Trump’s deputy chief of staff, and Warrington is Trump’s White House counsel.
Even witnesses willing to cooperate with the committee — like Mike Pence’s aides Marc Short and Greg Jacob, as well as Trump’s former White House counsel Pat Cipollone — refused to discuss direct conversations with Trump they said could potentially be covered by claims of executive privilege.
“We have an instruction from President Trump not to respond to questions that may implicate the privilege,” Short’s attorney Emmet Floodtold the Jan. 6 panel.
Trump’s effort, as a former president, to assert privilege over his White House records and testimony by former aides set up an unprecedented clash — no sitting president had ever diverged from the privilege claims of his predecessors. It raised unresolved questions about the degree to which former presidents retain any ability to assert privilege at all. Although the Nixon-era Supreme Court said they do, the justices also emphasized that only the incumbent president is charged with the stewardship of the executive branch and would virtually always prevail in a dispute with his predecessor.
Biden’s hands-off approach
Trump’s effort to stymie the Jan. 6 panel’s probe stands in contrast to Biden, who allies say has made no effort, so far, to instruct witnesses on how to approach the investigation into his cognitive health.
The Oversight Committee has not specifically articulated the scope of its investigation, but Comer said in a subpoena letter to O’Connor, Biden’s White House physician, that the panel is exploring legislation related to “oversight of presidents’ fitness to serve.” Republicans are also looking into making potential changes to the 25th Amendment, which gives Congress a role in determining whether a president is no longer fit to hold office — something House Democrats proposed during their probe of Trump’s actions preceding the Jan. 6 attack.
Committee Republicans have only just begun their inquiry in earnest. Comer has demanded participation from a wide range of Biden advisers — including two chiefs of staff, Ron Klain and Jeff Zients.
So far, just one witness has provided testimony: Tanden, the former staff secretary and domestic policy adviser, who fielded questions from the committee behind closed doors for hours.
Tanden has publicly indicated she answered all the committee’s questions, and a person familiar with the interview said the issue of executive privilege never came up, beyond a brief mention of Trump’s waiver at the outset.
Still, there are signs the issue may rise again.
Anthony Bernal, a former White House aide and adviser to first lady Jill Biden, withdrew from a scheduled interview after the Trump White House waived his executive privilege, leading to a subpoena from Comer that remains active.
On Tuesday, Trump’s White House issued a letter to O’Connor saying that the “unique and extraordinary nature” of the investigation into Biden’s health was reason to waive executive privilege. The letter further noted that the White House had decided that, after “balancing the Legislative and Executive Branch interests,” Congress should be able to hear O’Connor’s testimony “irrespective of potential executive privilege.”
Biden has so far not instructed aides to resist the probe on executive privilege grounds. In fact, he’s said little at all on the subject, instead leaving it to each witness to determine their own strategy. The former president has maintained he made the decisions during his presidency.
A person familiar with the Biden team’s thinking, granted anonymity to reveal confidential discussions, said there’s a key distinction between Biden’s privilege waiver for the Jan. 6 probe and Trump’s privilege waiver now. Despite Trump’s hostility toward the Jan. 6 investigation, the Biden White House engaged regularly with Trump and his team to discuss the contours of the waivers, sometimes narrowing the categories of information they made available to the committee, the person said.
Trump’s White House, on the other hand, is not engaging with the former president, the person said. Nor is the House Oversight Committee.
Asked about the role of executive privilege in the investigation, a committee spokesperson simply pointed to Trump’s waiver and said the issue isn’t being factored into its handling of topics for upcoming witnesses.
