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.”
Remus stated, “As President Biden said,” Remus added, “The insurrection which took place January 6 and the extraordinary events that surround it must be subjected to an accounting so that nothing like this ever occurs again.”
The move comes as Trump and some of his top allies are defying the congressional committee investigating the Jan. 6 insurrection – with some key Trump advisors such as Mark Meadows and Steve Bannon challenging subpoenas – in part of a long-term effort to delay the probe. Trump advisers have also insisted on executive privilege as they refused to comply with subpoenas asking them for relevant documents by January 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 Republican critics of Trump.
Learn more:Trump’s Allies Campaign to Whitewash January 6 Violence at the Capitol
“The president works tirelessly to ensure that this happens,” [Jan. 6]It could not happen again. This is why the White House Press Secretary Jen Psaki stated Friday that the administration was cooperating with continuing investigations, including the Jan 6 Select Committee to uncover what occurred as part of this process. The president has decided that executive privilege cannot be asserted on the first set documents that were provided by the National Archives to him.
Psaki stated that it was an ongoing process and pointed out that this document is only the beginning. She stated that “we will assess privilege issues on a case-by-case basis.”
Trump supporters caused the Jan. 6 storm at Capitol, resulting in more than 150 injuries to Capitol police officers and five fatalities. The incident occurred before Congress members counted the electoral votes, which certified Biden’s victory over Trump. More than 600 protesters were charged with federal offenses.
Ryan Goodman is a New York University School of Law law professor who said that Biden’s position was within the precedent of executive branches, while highlighting the fact that the case is so historically significant.
“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.
According to him, White House lawyers are aware that they cannot successfully protect these types of documents from Congress if it were brought up in court.
According to him, “Even though the Biden White House sided with Trump the claim of executive privilege will surely lose in Court given the legitimate congressional interests in the investigation.”
Jonathan Shaub is an Assistant Professor of Law at the University of Kentucky. He said that the Justice Department authorized top officials from the department to testify on Trump’s attempts to influence them into subverting the election results.
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, according to Shaub. As a result, the law in this area remains unsettled, he said.
“Litigation by Trump could thus very easily frustrate the committee’s ability to get information for a substantial period of time,” Shaub said.
Learn more:Jan. 6, committee sends subpoenas for 4 people in Trump’s inner circle
Staff writer David Jackson contributed to this report. Contact Joey Garrison @joeygarriosn or Courtney Subramanian @cmsub