Biden refuses to assert privilege over Trump documents sought by January 6 committee

UniqueThis 11 October 8, 2021

White House press secretary Jen Psaki told reporters Friday afternoon that President Joe Biden declined to assert privilege over documents pertaining to former President Donald Trump's administration sought by the January 6 select committee. During the White House press briefing, Psaki said that "the President has determined that an assertion of executive privilege is not warranted for the first set of documents from the Trump White House that have been provided to us by the National Archives."
"As we've said previously, this will be an ongoing process and this is just the first set of documents," she said. "And we will evaluate questions of privilege on a case-by-case basis, but the President has also been clear that he believes it to be of the utmost importance for both Congress and the American people to have a complete understanding of the events of that day to prevent them from happening again."
The National Archives has already identified documents in response to the committee request and shared them with the Trump legal team and the White House, according to a source familiar with the matter. NBC was first to report on the White House's decision.
The Archives did not immediately respond to CNN's request for comment and has previously said it considers the process as outlined by the Presidential Records Act to be "deliberative until a final decision is made."
"The documents are Trump-era White House records responsive to the select committee's request to the archivist. And so, there is a process where the former President would have a period of time to assess executive privilege and then the current President and team would have a period of time to review that request," Psaki said during Friday's White House press briefing.
Psaki would not say what the form of documents were, such as phone records or visitors' logs.
In a letter to the David Ferriero, the archivist of the United States, White House counsel Dana Remus writes that the decision to not assert executive privilege applies to an initial tranche of documents that were provided to the White House and Trump's attorneys in September. Remus writes that there are other documents the National Archives has provided to the White House for review and a decision about invoking executive privilege on those documents has not yet been made.
Remus wrote in the letter that the request comes amid "unique and extraordinary circumstances."
"Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President's constitutional responsibilities," Remus wrote. "The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself."
The letter concluded: "We understand that the former President believes that executive privilege should be asserted with respect to a subset of the Documents. When you notify us of such an assertion, we will respond accordingly."
Trump also sent a letter to the National Archives on Friday, arguing that approximately 40 of the documents initially requested by the committee are subject to executive privilege -- a claim that conflicts with Biden's determination.
"I hereby formally assert executive privilege over these records," Trump wrote, noting that the committee has requested "an extremely broad set of documents and records, potentially numbering in the millions" that he believes contain information either protected by executive privilege or others, like attorney-client privilege.
"Should the committee persist in seeking other privileged information, I will take all necessary and appropriate steps to defend the Office of the Presidency," Trump added.
The National Archives and Records Administration told CNN it was in receipt of both letters but declined to comment further.
Legal experts say Biden has the ultimate say over whether these documents are covered by executive privilege, and considering the committee is led by members of Biden's party, Trump's power to sway the outcome is an open question, something Psaki acknowledged on Friday.
"The process is one that has been outlined through history ... the former President has the ability -- not that there is a lot of past precedent here -- I will acknowledge, has the opportunity to exert executive privilege to documents that are in the National Archives. And then this President and this White House has the opportunity to review that," Psaki said.
The House select committee has launched a sweeping investigation into January 6. As part of that, the panel has sent requests for information to a number of federal agencies, including the National Archives, the custodian of the Trump administration White House records.
The committee asked for "all documents and communications within the White House" on that day, including call logs, schedules and meetings with top officials and outside advisers, including Rudy Giuliani.
The White House indicated last month that Biden did not expect to assert executive privilege to shield those records from being seen by the committee.
"We take this matter incredibly seriously," Psaki said during a press briefing on September 24. "The President has already concluded that it would not be appropriate to assert executive privilege."
Psaki noted Friday that "the first set of documents (was) reviewed on a case-by-case basis" but underscored that what the January 6 committee is investigating "is not the normal course of government business."
In August, Trump threatened to invoke executive privilege in an effort to block the House select committee from obtaining the massive tranche of documents it has demanded from several US government agencies, despite his successor having the ultimate say over whether the information can be shared.
To date, the former President has not been as aggressive legally in trying to assert that privilege as his public statements might suggest and the White House's announcement Friday indicates he will likely have trouble preventing the initial batch of documents from being released to the committee.
That said, Trump can still attempt to protect his records by suing relevant agencies -- assuming he can pull together enough legal firepower for a pricey and complex court battle.
If Trump files a lawsuit, that could, at very least, slow down the process of handing over the documents, but the former President only has a limited amount of time to take that step, according to Deborah Pearlstein, a constitutional law professor at Cardozo Law School and expert on presidential powers.
"If the sitting president has said he's not going to assert privilege, then there's a certain amount of time (before) the documents then have to be released unless the former President succeeds in getting a court order, an injection, for example, prohibiting their release," she told CNN. "That would require a pretty significant ruling by a federal court."
"It's not impossible but all of this is now under a ticking clock," she added, noting we could see activity "if the former president and his team are aggressive legally, sooner rather than later."
This story has been updated with additional reporting and reaction.

CNN's Jeremy Diamond, Maegan Vazquez, Kaitlan Collins and Kevin Liptak contributed to this report.


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