U.S. President Joe Biden is not asserting executive privilege over a tranche of documents sought by a House committee’s investigation into the Jan. 6 insurrection at the Capitol, setting up a showdown with former president Donald Trump, who has pledged to try to block records from his time in the White House from being turned over to investigators.
In a letter to the Archivist of the United States, White House counsel Dana Remus writes that Biden has determined that invoking executive privilege “is not in the best interests of the United States.”
This comes days after Trump lawyers sought to block the testimony of former Trump officials to the House committee citing executive privilege. On Friday, a lawyer for Steve Bannon said the former White House aide won’t comply with the House committee’s investigation because of Trump’s claim.
In August, the House committee investigating the January insurrection at the U.S. Capitol asked for a trove of records, including communication within the White House under Trump and information about planning and funding for rallies held in Washington.
Among those events was a rally near the White House featuring remarks by Trump, who egged on a crowd of thousands before loyalists stormed the Capitol on Jan. 6.
Documents ‘shed light’ on Jan. 6, lawyer says
In the letter, Remus writes that the documents reviewed “shed light on events within the White House on and about Jan. 6 and bear on the select committee’s need to understand the facts underlying the most serious attack on the operations of the Federal Government since the Civil War.”
The Associated Press obtained a copy of the letter Friday, which was first reported by NBC News.
Copies of the documents responsive to the request were turned over to the Biden White House and Trump’s lawyers for review for potential executive privilege concerns in accordance with federal law and the executive order governing presidential records.
The committee’s 10-page request to the Archives seeks “All documents and communications within the White House on January 6, 2021,” related to Trump’s close advisers and family members, the rally at the nearby Ellipse and Trump’s Twitter feed.
Rioters loyal to then-president Donald Trump storm the U.S. Capitol on Jan. 6 in Washington. Documents being sought by a committee probing the Capitol riot pertain to what went on that day, according to White House lawyers. (John Minchillo/The Associated Press)
It asks for his specific movements on that day and communications, if any, from the White House Situation Room. Also sought are all documents related to claims of election fraud, as well as Supreme Court decisions on the topic.
Biden’s decision affects only the initial batch of documents reviewed by the White House. Press secretary Jen Psaki said subsequent determinations would be made on a case-by-case basis.
Legal battle expected
The incumbent president has the final say unless a court orders the Archives to take a different action. Trump has not formally sought to invoke executive privilege over the documents, though that action is expected soon.
Trump is expected to take legal action to block the release of the documents, which if granted, would mark a dramatic expansion of the unwritten executive power.
Trump will have an uphill battle, as courts have traditionally left questions of executive privilege up to the current White House occupant — though the former president’s challenges could delay the committee’s investigation.
Former U.S. president Donald Trump is seen at a rally in Perry, Ga., on Sept. 25. Trump has pledged to try to block records from his time in the White House from being turned over to investigators. (Dustin Chambers/Reuters)
Two other witnesses subpoenaed by the panel, former White House chief of staff Mark Meadows and former Pentagon aide Kash Patel, are “engaging” with the committee, according to its Democratic chair, Mississippi Rep. Bennie Thompson, and Republican vice-chair, Rep. Liz Cheney of Wyoming.
Thompson and Cheney issued a statement Friday after a deadline for document production had passed.
“Though the Select Committee welcomes good faith engagement with witnesses seeking to cooperate with our investigation, we will not allow any witness to defy a lawful subpoena or attempt to run out the clock, and we will swiftly consider advancing a criminal contempt of Congress referral,” the two lawmakers said.
A spokesperson for the panel declined to comment on the status of a fourth witness, former Trump communications aide Dan Scavino.
Bannon refusal could delay investigation
Bannon’s refusal to comply with the House investigation, and Trump’s vow to litigate the testimony, will mean certain delays in the panel’s probe.
But members of the committee, several of whom worked as prosecutors on Trump’s two impeachments, were prepared for the possibility and have repeatedly threatened charging witnesses with contempt.
Trump often successfully fought witness testimony during his presidency, but may find his legal standing shakier now that he is out of office.
Former White House aide Steve Bannon exits a federal court in New York City in August 2020. Bannon has refused to comply with the House investigation until issues surrounding executive privilege are resolved. (Andrew Kelly/Reuters)
A committee effort to charge witnesses with contempt would likely involve a vote of the full House and a referral to the Justice Department. It would then be up to Justice how to proceed with charges.
Bannon’s lawyer, Robert Costello, said in an Oct. 7 letter to the panel that until the issues over privilege are resolved, “we are unable to respond to your requests for documents and testimony.”
Costello wrote that Bannon, a former aide to Trump who had contact with him the week of the Capitol attack, is prepared to “comply with the directions of the courts” when and if they rule on the issue.
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