The Washington PostDemocracy Dies in Darkness

Opinion A unique reason to forgo executive privilege

President Donald Trump at the White House on Sept. 16, 2020.
President Donald Trump at the White House on Sept. 16, 2020. (Jabin Botsford/The Washington Post)
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Neither George J. Terwilliger III, “In abandoning executive privilege, Biden rejects 200 years of history,” nor Ruth Marcus, “Executive privilege is the president’s to assert” [both Sunday Opinion, Nov. 14], addressed the possibility that a crime/fraud exception applies to former president Donald Trump’s invocation of privilege. A crime/fraud exception has applied to attorney-client privilege since well before our Constitution was written.

No better test case for application of a crime/fraud exception to executive privilege exists than the efforts to prevent Congress from counting electoral votes and inhibit the peaceful transfer of power.

Jonathan M. SternRockville

George J. Terwilliger III wrote that “the Biden administration[’s refusal] . . . to resist a congressional subpoena for testimony from a senior White House aide . . . [flies] in the face of 200 years of history.” The Biden administration asserted that executive privilege should not be granted because the events of Jan. 6 were “unique and extraordinary circumstances.” Mr. Terwilliger argued this could open the door for capricious interpretation of executive privilege in the future.

It is curious that Mr. Terwilliger began with the 200-year argument, then forgot the same time frame regarding the country’s perfect streak of successful peaceful transitions of power. The record was broken on Jan. 6. That fact is literally unique and highly extraordinary. Holding future withholdings of executive privilege to such a high standard would be a great way to prevent abuse.

Andrew Wise, Alexandria

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