Biden to Weigh Executive Privilege on Trump Jan. 6 Docs Protesters outside the Capitol on Jan. 6. (AP)
By Theodore Bunker | Friday, 17 September 2021 12:00 PM
The investigation into the events surrounding the storming of the Capitol on Jan. 6 have led hundreds of pages of documents to be sent to former President Donald Trump's legal team to review, which could put the White House in a difficult position, Politico reports.
The National Archives and Records Administration sent the documents requested by the committee probing Jan. 6 to Trump's legal team, which means President Joe Biden’s White House counsel will have to decide whether to overrule any of his predecessor's objections, which could set precedent for future former presidents, or to withhold materials Trump objects to, which could cause a backlash.
The House select committee asked for the notes that summarize the president's meetings on the day of the attempted insurrection, but much of the material the panel is seeking could be shielded by executive privilege. Additionally, the Presidential Records Act states, while former presidents can have input on whether to argue executive privilege on materials from their administration, only the current president can actually assert this privilege to prevent the National Archives from releasing records from the White House.
Trump said in a statement last month he will ask Biden's attorneys to assert executive privilege, which he said "will be defended, not just on behalf of my administration and the Patriots who worked beside me, but on behalf of the Office of the President of the United States and the future of our Nation."
"As President Biden has said, the events of Jan. 6 were a dark stain on our country's history, and they represented an attack on the foundations of our constitution and democracy in a way that few other events have," White House rapid response director Mike Gwin wrote in a statement. "The president is deeply committed to ensuring that something like that can never happen again, and he supports a thorough investigation into what occurred.
"That's why his administration has been engaging with Congress on matters relating to Jan. 6 for several months now and will continue to do so, including with the select committee."
Multiple experts, including David Rivkin formerly of the Justice Department and the White House Counsel's Office, said Biden will likely assert executive privilege in at least some of the cases."I think not asserting executive privilege, given the nature of the documents they're asking for, would set a very bad precedent," Rivkin said. "But the current occupant of the White House can set all sorts of bad precedents."
Biden will likely release some of the materials that Congress is seeking, but not all of them, Saikrishna Prakash of the University of Virginia School of Law added.
"You can imagine them honoring some and not others," he told Politico. "And it sounds like the president will then try to go to court and say, 'You can't release these materials.'"