WASHINGTON — President Joe Biden’s administration 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.
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.”
The move comes as Trump and some of his top allies are defying the congressional committee investigating the Jan. 6 insurrection – with some Trump advisors such as Mark Meadows and Steve Bannon challenging subpoenas – 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 January 6 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.
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.
Staff writer David Jackson contributed to this report. Reach Joey Garrison on Twitter @joeygarriosn and Courtney Subramanian @cmsub