Biden’s Bogus Executive Privilege Claim

Last February, Special Counsel Robert Hur released his 388-page report on the investigation into President Biden’s possession and mishandling — long after his vice presidency — of classified documents he obtained when he was vice president. Some of the papers, you’ll remember, were kept in boxes in Biden’s garage.

In Hur’s report, he concludes that Biden should not be tried on the possible charges because he’s too old and has too poor a memory, citing the fact that in the videotaped deposition sessions, Biden couldn’t remember much of anything, including the year in which his son, Beau, died.

Hur’s report says:

We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.…

Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.

In short, the report says Biden shouldn’t be tried because a conviction is unlikely due to his mental incompetence.

That obviously means Biden is also incapable of doing the job of president.

Since Hur’s report came out, House Republicans have been trying to get copies of the videotapes and transcripts of the deposition. They have subpoenaed Attorney General Merrick Garland, who has refused to produce them. (READ MORE from Jed Babbin: Impeach Biden?)

A few days before Congress was to vote to cite Garland in contempt of Congress, Biden invoked executive privilege with respect to the videotapes which blocks congressional and public access.

Biden’s claim of executive privilege for the transcripts and videotapes of the Hur deposition is entirely bogus. The Wall Street Journal said just that in a Friday editorial.

One part of that editorial asserts that Biden can’t claim privilege because he waived it. Both Cong. Andy Biggs (R-AZ) and the WSJ say that Biden waived the privilege by disclosing transcripts of the Hur interviews.

It’s not clear what parts of the transcripts were disclosed, but to whatever extent they were, Biden can no longer claim they — or the corresponding videos — are privileged.

There are other reasons that Biden’s assertion of executive privilege is nonsense.

In the 1974 case of U.S. v. Nixon, the Supreme Court ruled on a special prosecutor’s subpoena against President Nixon who had claimed executive privilege over all presidential communications.

The Court ruled, in part, that there is a:

valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.

The Court’s ruling in U.S. v. Nixon went further:

However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

That Biden’s handling of classified documents was the basis for Hur’s investigation is no help to Biden here. There is no claim that military, diplomatic, or national security secrets are threatened if the transcripts and videos of Biden’s two-day deposition are obtained by Congress. And there can’t be because both the Senate and the House have procedures to protect such secrets.

For example, both the House Permanent Select Committee on Intelligence and the House Armed Services Committee have approved procedures for viewing top secret documents and information and getting briefings on them. James Comer’s investigatory committee, which is pursuing Biden’s impeachment, obviously can protect Biden’s testimony about documents that were classified when he was vice president.

The actions Hur was investigating took place while Biden was vice president and in the period between him leaving office and then taking office as president. There is no valid basis for Biden to assert executive privilege with regard to the transcripts and videos for that reason alone.

You should note a parallel to Biden’s assertion of executive privilege here in former president Trump’s claim of immunity from prosecution for any actions he took while president.

Just as, under the Supreme Court’s ruling in U.S. v. Nixon, there is a need to protect “communications between high government officials and those who advise and assist them in the performance of their manifold duties,” there is a need to protect – that is, immunize – a president for actions he took within the scope of his myriad duties as president. (READ MORE: Republicans Being Stupid)

Therefore, we should expect the Supreme Court to rule in Trump’s case that his actions on January 6, 2021, while certainly not admirable, are not prosecutable under federal law. That won’t excuse him from the Florida case about mishandling of classified documents after he was president, but it should kill the D.C. case against him based on his actions on that January 6^th.

Biden’s assertion of executive privilege on the Hur transcripts and videos is entirely bogus but it will take a ruling, probably by the Supreme Court, to get Congress those items. And Biden will probably be able to keep them hidden from Congress — and the public — until after the election.

We’ve seen it all before. During Obama’s presidency, he created the 2009 “Fast and Furious” program which ended up arming Mexican cartels with about two thousand U.S.-made guns. When Congress voted to hold then-attorney general Eric Holder in contempt for refusing to produce the “Fast and Furious” documents, Obama asserted that they were protected by executive privilege. Some 65,000 documents were eventually released but only in 2014 after Obama was reelected.

Which is Biden’s reason for asserting executive privilege. He wants to hide the transcripts and videos at least until the 2024 election is over because they would probably kill his attempt at reelection. For that reason alone, the courts should accelerate consideration of Congress’s demand for the videos and transcripts. Biden wants to keep them hidden. The public should have access to them as soon as possible.

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