WASHINGTON – White House set to release information to Congress about what Donald Trump and his aides did in the Jan.6 attack on the United States Capitol over former President’s objections – a decision that could have important political and legal ramifications.
Trump has said he will invoke “executive privilege” to block requests for information from the House select committee investigating today’s events, leveraging a legal theory that has enabled presidents and their aides to avoid or delay consideration of Congress for decades, including during the Trump administration.
But President Joe Biden’s White House plans to err on the side of disclosure given the gravity of the events of January 6, according to two people familiar with the talks who, like others, spoke on condition of anonymity to describe the talks. private.
In response to questions about the White House’s deliberations on what to disclose, Biden spokesman Michael J. Gwin said the president viewed the attack on the Capitol as “a dark stain on history. of our country “and was” deeply committed to ensuring that something like this can never happen again, and he supports a full investigation. “
Members of the Inquiry Committee argue that Trump no longer enjoys the protection of executive privilege, urging the White House to set aside institutional concerns about information sharing with Congress and to assist the panel in a focused inquiry. what Democrats and a handful of Republicans have called an assault on democracy.
“It’s not really relevant because there is no president involved – there is no executive privilege of a past president,” said Rep. Jamie B. Raskin (D-Md.), member of the committee that teaches constitutional law. “It’s extremely watered down and not really relevant.”
What Trump was doing during the attack and who he spoke with are some of the big unanswered questions about the assault on Capitol Hill.
The debate over the veracity of his claims for executive privilege comes as the committee enters a new, more aggressive phase of its investigation. After requesting material from telecoms, social media companies and the White House – and receiving responses – he is now examining how best to get reluctant people to participate in the testimony and documents.
Committee chair Bennie G. Thompson, D-Miss., Said this week that his panel will soon issue subpoenas to witnesses and organizations, adding that the committee has started scheduling in camera testimony with witnesses cooperative. A preliminary list of summons is expected to be released by the committee as early as Thursday and could include prominent Trump allies and White House officials.
Trump has ridiculed the committee’s work as a partisan and vows to fight its efforts to collect information and testimony related to the attack.
“The very partisan Communist-style ‘select committee’ has made a shockingly broad document request that lacks both legal precedent and legislative foundation,” Trump spokesman Taylor Budowich said in a statement. . “Executive privilege will be upheld, not only on behalf of President Trump and his administration, but also on behalf of the office of the President of the United States and the future of our nation.”
In response to the House panel’s request, the National Archives has already identified hundreds of pages of Trump White House documents relevant to its investigation. As required by law, the material is turned over to Biden’s White House and Trump’s attorneys for review.
The committee’s August 25 letter to the National Archives was both sweeping and detailed, requesting “all documents and communications within the White House on January 6, 2021, relating in any way” to the events of that day. . These include examining whether allies in the White House or Trump worked to delay or stop the counting of the electoral votes and whether there have been discussions about the possibility of obstructing the peaceful transfer of power.
The letter requested call logs, schedules and meetings for a large group, including Trump’s adult children, his son-in-law and senior advisor Jared Kushner and First Lady Melania Trump as well as a host of assistants and advisers, such as his lawyer Rudolph. W. Giuliani.
The committee focused, in part, on seeking information as to whether Trump’s White House and members of Congress played a role in encouraging the protests, which interrupted the certification of electoral votes mandated by Constitution and sparked a series of violent confrontations with the United States Capitol Police. .
So far, more than 650 people have been charged with crimes related to the violent protests that have delayed this vote. Many have been charged with obstructing federal proceedings and knowingly entering or remaining in a restricted building. Documents and testimony could show whether White House officials and members of Congress encouraged or supported these actions, congressional staff said.
The White House documents requested by the panel are identified by National Archives staff and then sent to lawyers for Biden and Trump. The first installment was sent on August 31, according to a person familiar with the transfer.
Trump has 30 days after the documents are handed over to decide whether to oppose their publication, according to the law. Even if he opposes their surrender, the White House Biden has the decision-making power and can release them, despite Trump’s objections, after another 60 days. Trump’s remaining option would be to go to court to try to stop the release, legal advisers have said.
While Trump has adopted a defiant tone, his options may be limited if Biden decides to hand over information that the former president says should be protected, according to several legal experts – including those who have considered similar requests in the pass.
“The law we have is not favorable to the former president,” said Bob Bauer, who served as White House legal counsel under President Barack Obama. “A former president has the opportunity to review documents, raise questions of privilege, and if the former and current president cannot come to an agreement, take the dispute to court.”
Bauer added that while an investigation of a former president is unique, legal precedents suggest disclosure of the information Congress is seeking.
“The circumstances here – the former president acting at the time as a candidate seeking to challenge his defeat at the polls – make this difficult battle much, much more difficult,” he said.
Norm Eisen, a former Obama-appointed person who advised Trump’s first impeachment inquiry in the House, said the former president’s power to assert executive privilege has weakened since he left the White House.
“The blockage of executive privilege that Trump used while in office will no longer work,” Eisen said, noting that the current president – and not the former – has real decision-making power.
A former federal judge who has worked on executive privilege issues at White House Ronald Reagan and George HW Bush’s Justice Department stressed that privilege requests generally do not attempt to protect information about potential wrongdoing.
“With a few notable exceptions, it has historically been a practice for presidents to avoid asserting executive privilege to protect against disclosure of information suggesting wrongdoing or potential on the part of a president and / or his or her. advisers ”, J. Michael Luttig, former US federal judge. , said in an email.
Several cases involving requests for tapes and other documents from Richard Nixon’s White House set a precedent for the release of presidential documents at the request of Congress or government agencies.
In 1977, the Supreme Court in Nixon v. Administrator of General Services, rejected Nixon’s claims of privilege over White House records and documents, embracing the idea that executive privilege “is not for the benefit of the president as an individual, but for the benefit of the president. of the Republic.”
Legal experts have also pointed to recent private talks involving Trump officials and Congress that could pave the way for a resolution that does not involve going to court. They cite negotiations that took place between Trump’s attorneys, the Justice Department and the Senate Judiciary Committee investigating allegations that Trump’s Justice Department official Jeffrey Clark sought to deploy resources ministry after the election to support Trump’s allegations of massive voter fraud.
In the end, Biden’s Justice Department waived executive privilege, and two of Trump’s former top Justice Department officials, Jeffrey Rosen and Richard Donoghue, held talks with the Senate Judiciary Committee, providing detailed accounts of what happened during the post-election period.
The decisions Biden and Trump make regarding current cases and interview requests will be critical, said Jonathan Turley, a professor at George Washington University who has written on the protection of White House documents and previously argued that the Democrats’ impeachment efforts against Trump were a mistake. the use of the power of Congress.
“There is an unbroken tradition of deference on the part of outgoing presidents to their predecessors,” Turley said. “In the past, outgoing presidents generally supported their predecessors by restricting access, despite partisan differences. It looks like we are on the verge of breaking this tradition.
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Josh Dawsey of the Washington Post contributed to this report.