When it comes to document after document regarding the panel’s expansive Jan. 6 request, Biden’s White House lawyers are likely to face the same difficult dilemma: They can either send the material on Trump’s objections to Congress, entering unprecedented legal territory on the treatment of former presidents; or they can withhold documents from Hill’s allies, hampering investigator access and potentially generating significant political fallout.
Here is how it goes:
On August 25, the Capitol Attack Investigation Committee sent a 12-page document request to the National Archives. The committee asked for documents that could be very sensitive, including internal communications on January 6 linked to a host of officials, including top White House lawyers, the president’s national security adviser and chief of staff. Of the president.
The House insurgency selection panel, led by President Bennie Thompson (D-Miss.) And Vice President Liz Cheney (R-Wyo.), Also requested all notes summarizing the president’s meetings this that day and all documents sent to and from the White House Situation Room on January 6. This is just a small sample of the committee’s extensive offerings for materials.
Much of what the committee seeks could be covered by executive privilege – a legal doctrine preventing presidents’ communications with their advisers from becoming public. The privilege exists so that presidents can have frank and uncomfortable conversations with their key associates without worrying about embarrassment or future repercussions.
And the law governing the records of the White House, known as the Presidential Records Act, states that former presidents have the right to vote on whether executive privilege should be invoked to prevent records of their administrations from being transmitted. in Congress. But only the current president can officially assert executive privilege to prevent the National Archives from releasing White House documents, according to a subsequent executive decree on the process.
Archivists are now scrambling to find documents responding to the committee’s request, according to the source familiar with the process, who approached it frankly on condition of anonymity. As these files are found, they send them to Trump’s legal team on an ongoing basis.
As these Trump attorneys receive files, they have 30 days to decide whether or not to ask Biden’s White House to assert executive privilege and prevent archivists from sharing with the Hill. Then, the Biden administration has 30 days to decide whether or not to assert the privilege.
If Team Biden decides to override Team Trump, another 60-day window opens in which Team Trump can try to change Biden’s lawyers’ minds or go to court. But the Presidential Records Act and the executive orders that interpret it include sometimes hazy language, and experts may have different views on some of the more delicate points of this process, including the time limits involved.
It’s unclear whether Trump’s attorneys have ever asked Biden’s attorneys to assert executive privilege over any of the documents they have received so far. But Trump himself has said they will.
“Executive privilege will be defended, not only on behalf of my administration and the patriots who have worked alongside me, but on behalf of the office of the President of the United States and the future of our nation,” he said. said in a statement last month. .
A White House spokesperson, in turn, noted that Biden had praised the select committee.
“As President Biden said, the events of January 6 were a dark stain in the history of our country, and they represented an attack on the foundations of our constitution and our democracy in a way that few other events have, ”the White House director of rapid response said. Mike Gwin in a statement. “The President is deeply committed to ensuring that such a thing never happens again and he supports a full investigation into what happened. That is why his administration has been engaged with Congress on January 6 issues for several months now and will continue to do so, including with the select committee. “
David Rivkin, who served on the White House board office and the Justice Department in the Reagan and George HW Bush administrations, said the Biden team should assert their privilege on at least some of the documents in question.
“They go to the highest levels of the administration’s deliberative process,” said Rivkin, who practices constitutional and appeal law.
Other experts agreed, saying Biden is likely to side with Trump and against the select committee led by his fellow Democrats in at least some cases. That’s because all presidents know they will eventually be past presidents – and most are loath to weaken the privilege they may one day want to claim. A person familiar with the negotiations between the select committee and the White House said he expects Biden’s team to sin on the disclosure side given the seriousness of the Jan.6 attack.
The decision is up to Biden. And if he chooses not to claim executive privilege on Trump’s behalf, he will be in uncharted territory. Rivkin said he was not aware of any instance where a sitting president chose not to assert privilege on behalf of a former president.
“I think that not claiming executive privilege, given the nature of the documents they are asking for, would set a very bad precedent,” he added. “But the current occupant of the White House can set all kinds of bad precedents.”
Annie Owens, a former Democratic staff member of the Senate Judiciary Committee who helped research records from Supreme Court Justice Brett Kavanaugh’s time in the White House, said in an interview that Biden may decide that certain interests l outweigh the importance of executive privilege.
“In that case, where you are investigating an insurgency that happened on Capitol Hill and if someone in the White House knew about it in advance, then there’s a pretty compelling argument that the need for information Congress outweighs any White House interest in retaining it, ”said Owens, who also helped the House prosecute to compel former Trump White House chief Don McGahn to testify.
If Trump and Biden disagree on whether to send a document to the committee, the former president could take the further and dramatic step of going to court, according to Owens. Under the Presidential Records Act, former presidents can sue if they believe their administration records risk unlawful release. This has never happened before, and Owens said she thought such an effort would be a long shot.
She added that she believes Biden’s White House will likely give the green light to release some, but not all, of the documents Hill wants. Saikrishna Prakash, a law professor at the University of Virginia, agrees.
“You can imagine them honoring some and not others,” he said in an interview. “And it looks like the president will then try to go to court and say, ‘You can’t release these documents. “”
Litigation could slow the process down enough that it wouldn’t even matter to Trump whether he ultimately wins or loses in court, Prakash added.
“In all of these situations, the key is to delay whether you are the president or the former president,” he said. “The privilege of the executive is partly strategic. If you can delay the release of the information, that is to your advantage because the House can change hands and there will be no committee on January 6.