National Review Online
Monday, May 20, 2024
Let’s not pretend there are exalted matters of
principle at stake. President Biden’s assertion of executive privilege to block congressional access to his interview by special
counsel Robert Hur is nothing more than election-year politics.
The president has many vulnerabilities, which is why his
job-approval numbers are in the tank and current polling shows him slightly
trailing Donald Trump, despite Trump’s similar disapproval numbers. Of these
vulnerabilities, however, none stand out nearly as much as age and infirmity.
Biden is 81 and deteriorating before the nation’s eyes even as he asks for a
second term that — if he survives — would take him to age 86. Our many policy
differences with him aside, he is simply not up to the world’s most important
and grueling office.
That is why Biden has asserted executive privilege to
keep the recording under wraps. Forget all the bombast about separation of
powers, protecting the confidentiality of executive communications, and
encouraging cooperation with intra-branch investigations. Forget the
ever-pliant Attorney General Merrick Garland’s apparent willingness to take the
fall — claiming, straight-faced, that some law-enforcement imperative demands
sealing an embarrassing recording of his boss when Garland has already released
the transcript.
Biden is withholding the recording of the interview for
the same reason Republicans want it exposed: It would corroborate, in a painful
way that no cold transcript could do justice, Hur’s conclusion that the
president is failing mentally.
The mere transcript already shows that Biden has trouble
remembering basic facts, keeping focused, and relating linear answers to
straightforward questions. The transcript’s release was also humiliating for
the White House. It put the lie to coordinated Democratic attacks on Hur,
particularly the mindless rallying around Biden’s claim that the prosecutor had
braced him with questions about his elder son’s death when it was Biden himself
who brought up the subject — as he invariably does in tight spots.
It is simply a fact of life that video and audio
recordings tend to make a vivid impression to which even a faithful
transcription cannot compare. That is why Biden is asserting executive
privilege. Not because he is authorized to but because he can.
It’s not as though Republicans are pure here. When, for
example, House Democrats tried to subpoena testimony from former White House
counsel Don McGahn, the GOP asserted the claims now echoed by Democrats: They
argued, absurdly, that the president had not waived his objection to McGahn’s
testifying. But Trump had already permitted McGahn to be interviewed by, and
surrender extensive notes to, an executive-branch special counsel on the same
subject. That counsel, Robert Mueller, had (like Hur) compiled a voluminous
report referencing that testimony, in which he opted against recommending
charges against the president. The report had been released publicly by Trump’s
attorney general. An election-year political fight ensued, which the courts
were unable to resolve. The matter ended in a political truce: McGahn
testified, but only after the 2020 election and under strict conditions imposed
by the executive branch.
Of course, that doesn’t make this kind of claim of
executive secrecy correct. Congress and the public should get to hear the
recording, which would shed light on the president’s fitness in a way the
transcript does not.
The White House is banking on the usual cooperation from
the media — figuring that after a grudging day or two of covering Biden’s
stonewalling, friendly outlets will move on to other things. Democrats always
benefit from a different set of rules. Recall the crickets that greeted
President Obama’s catch-and-kill strategy in burying the many emails he
exchanged via then–secretary of state Hillary Clinton’s home-brew server
system.
The Constitution endows Congress with an arsenal for
prying such information from the presidential vault — everything from slashing
budgets and placing holds on nominations to contempt citations and impeachment.
But if a president knows his party holds enough sway in Congress to defang that
arsenal, then the calculation comes down to how much political damage he is
willing to endure to keep an embarrassment under wraps.
In this case, the answer is as much as necessary.
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