WASHINGTON — President Joe Biden’s administration Friday formally rejected the first attempt by former President Donald Trump to withhold White House documents from a congressional committee investigating the Jan. 6 attack on the U.S. Capitol.
It sets up a possible legal fight to decide whether the records are ultimately released.
In a letter Friday to the National Archives obtained by USA TODAY, White House Counsel Dana Remus wrote that “President Biden has determined that any assertion of executive privilege is not in the best interest of the United States, and therefore is not justified as to any of the documents.”
“As President Biden has stated,” Remus continued, “the insurrection that took place on January 6, and the extraordinary events surrounding it, must be subject to a full accounting to ensure nothing similar ever happens again.”
Trump has claimed executive privilege over a wide range of documents sought by the Jan. 6 Select Committee detailing communications and activities of his aides as the Capitol came under attack by Trump supporters. The committee has requested documents from several federal departments and agencies including the National Archives, the custodian of White House records.
Trump singles out more than 50 documents he claims are protected
Trump responded to Biden’s decision in a letter Friday, saying the committee requested an “extremely broad set of documents and records, potentially numbering in the millions.” He said the requests “unquestionably contain” information protected by executive and other privileges such as presidential communications, deliberative process and attorney-client privileges.
He cited more than 50 documents sought by the select committee he claims are protected by executive privilege, vowing to take “all necessary and appropriate steps to defend the Office of the Presidency” if the committee seeks other privileged information.
“This Committee’s fake investigation is not about January 6th any more than the Russia Hoax was about Russia,” Trump said in a statement. “Instead, this is about using the power of the government to silence ‘Trump’ and our Make America Great Again movement, the greatest such achievement of all time. “
Trump and some of his top allies are defying the investigation with some Trump advisors such as Steve Bannon challenging subpoenas as part of an effort to delay the probe. Trump aides have also cited executive privilege in their refusal to comply with the subpoenas that asked them to produce relevant documents by Jan. 7.
The White House has said it would not be appropriate for Biden to assert executive privilege to block the release of the initial tranche of documents sought by the select committee, a bipartisan House panel made up of seven Democrats and two Republicans.
“The president is dedicated to ensuring that something like [Jan. 6] could never happen again, which is why the administration is cooperating with ongoing investigations including the January 6 Select Committee to bring to light what happened as a part of this process,” White House press secretary Jen Psaki said Friday.
Psaki added that it is an “ongoing process” and noted that this is just the first set of documents.
“We will evaluate questions of privilege on a case by case basis,” she said.
Executive privilege fight could end up in court
Jonathan Shaub, an assistant professor of law at the University of Kentucky, said Trump may decide to sue the National Archives but he faces an uphill legal battle.
A Supreme Court ruling in 1977 found that while executive privilege “survives the individual President’s tenure,” it “must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch.”
But the Supreme Court did not hold that an incumbent president’s decision always takes precedence over the former president’s claim. As a result, the law in this area remains unsettled, according to Shaub, which could result in a lengthy court challenge that could ultimately delay the investigation.
“Litigation by Trump could thus very easily frustrate the committee’s ability to get information for a substantial period of time,” Shaub said.
The Jan. 6 storming of the Capitol by Trump supporters led to injuries of more than 150 Capitol police officers and five deaths. It came before members of Congress counted electoral votes that certified Biden’s election victory over Trump. More than 600 rioters have been charged with federal crimes.
Ryan Goodman, a law professor at New York University School of Law, said Biden’s position fits within precedent of the executive branch, but emphasized the case is “so historically momentous.”
“The congressional and public interests are so extraordinary in this case that it makes good lawyerly sense for the White House to conclude that the shield of executive privilege should not apply,” said Goodman, who served as special counsel to the general counsel of the Department of Defense from 2015-2016.
He said White House lawyers know they could not successfully shield these kinds of documents from Congress if the matter were pursued in court.
“Even if the Biden White House had sided with Trump, the claim of executive privilege would surely lose in court given the legitimate and enormous congressional interests in this investigation,” he said.
White House cities ‘unique and extraordinary circumstances’
The White House and Congress have historically negotiated resolutions to disputes over documents that were initially withheld, citing privilege, only to be released years later after protracted court battles, according to Goodman. In some cases, documents were released years after the request was made.
In a recent article for Just Security, Goodman pointed to the 9/11 Commission, during which former President George W. Bush submitted some documents from both the Bush and Clinton administrations but withheld others – a decision Clinton administration lawyers disagreed with because of concerns that it could inaccurately portray Clinton’s actions.
The Bush White House argued they withheld some documents because they were “duplicative and ‘highly sensitive,'” Goodman wrote.
But Bush officials “ultimately acquiesced to the review and disclosure of some of the withheld documents.”
In the letter to the National Archives, Remus said, “These are unique and extraordinary circumstances,” adding that Congress is examining “an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them.” Remus said the conduct under investigation “extends far beyond typical deliberations concerning the President’s constitutional responsibilities.”
“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.”
Staff writer David Jackson contributed to this report. Reach Joey Garrison on Twitter @joeygarriosn and Courtney Subramanian @cmsub