In its appeal from Judge Aileen Cannon's order appointing a special master, the Biden administration is taking the position that the incumbent president can waive claims of executive privilege by his predecessor even if his predecessor is likely to run against him in the next election. So, let's see how this would have played out if the shoe were on the other foot.
Imagine if President Donald Trump had tried to waive his predecessor's executive privilege, relating to President Barack Obama's decision to allow the United Nations Security Council to condemn Israel for its continuing "occupation" of the Western Wall and the roads to Hebrew University and Hadassah Hospital. Many in the Obama administration opposed this one-sided resolution as anti-Israel and wanted the United States to veto it, as it had vetoed previous anti-Israel resolutions. But Obama instructed his UN representative, Samantha Powers, not to veto it.
Trump knew he would be running against Obama's vice president and that he might gain an electoral advantage if Congress held hearings on the controversial Obama decision. What advice did Biden give Obama? Is it true that Powers wanted to veto the resolution, but Obama forbade it in order to take revenge against Israeli Prime Minister Benjamin Netanyahu for his speech opposing the Iran deal?
Disclosing these privileged negotiations might well have hurt Biden with pro-Israel voters.
What if Obama had been called by a congressional committee to turn over all internal communications — written and oral — regarding his decision, and he claimed executive privilege? And what if then President Trump were to have waived Obama's privilege?
One thing we know to be certain: many of the academic "experts" and media "pundits" who now support the argument that an incumbent president can waive the executive privilege of his predecessor would be making exactly the opposite argument. They would be saying — as I am saying now — that presidents would be reluctant to have confidential communications with their aides if they knew these communications could be made public by their successor in order to gain partisan electoral advantage. It would essentially mark the end of executive privilege, which is rooted in Article II of the Constitution.
The weaponization of the Constitution and the law for partisan advantage has become so pervasive, especially in academia and the media, that predicting what position many experts and pundits will take is no longer possible on the basis of neutral principles or precedents, since these have ceased to be the basis for their positions. Accurate predictions today require us to know which persons or parties will be helped or hurt by particular outcomes. Hypocrisy reigns. And those who engage in it are not even embarrassed when their double standards are exposed. The current "principle" is that the ends justify the means, especially if the end is the end of Trump.
Nor are Democrats the only guilty party. Perhaps the most blatant example of partisan hypocrisy was how the Republican Senate treated the 2016 nomination of Merrick Garland and the 2020 nomination of Amy Coney Barrett as Supreme Court justices. The Republicans refused to give Garland a hearing in 2016, because it was too close to the election, but then rushed through the nomination of Barrett just weeks before the 2020 election. Whenever asked to justify their obvious double standard, their only response was "because we can."
"Because we can" has become the current mantra of both parties. Neutral principles, which apply equally without regard to partisan advantage, is for wimps, not party leaders or other government officials. "They do it too" has become the excuse de jure. Both parties do it, but that is not a valid excuse even in hardball politics. Two constitutional violations do not cancel each other. They only make things worse.
Executive privilege is important to both parties -- and to the constitutional rule of law. Today's partisan victory for Democrats, if their waiver argument is accepted, will soon become their loss should Republicans take control.
So beware of what you wish for. Today's dream may well become tomorrow's nightmare.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principle: Why Integrity Is Worth The Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow" podcast.
Peter Rotberg