The Executive-Privilege Paradox

Late last Friday, the Biden administration did something that was, in a way, surprising. Across many years and multiple administrations, presidents have jealously guarded the executive branch’s prerogative to withhold certain categories of information from Congress—as well as from the courts and the public—insisting that executive privilege is both constitutionally grounded and essential to the separation of powers. But the Biden administration decided to go against that norm, announcing that it would not invoke executive privilege to block the release of White House documents requested by the House Select Committee to Investigate the January 6th Attack on the United States Capitol.

The announcing the decision, from White House Counsel Dana Remus to the archivist of the United States (in whose custody the documents reside), explained that President Joe Biden “has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents.” , released by the White House Wednesday night, acknowledged that former President