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A request from the Jan. 6 select committee for Trump White House records may seem like something that President Biden will easily green-light, but the reality is that the inquiry poses a challenge for his administration.
“I do think the Biden administration will be a little more protective than people expect,” said Jonathan David Shaub, a former Justice Department attorney who worked in the Office of Legal Counsel — which handles issues like executive privilege — during the Obama administration.
Biden’s White House will need to balance the desire for information about the insurrection with the instinct to protect itself and future presidential administrations from record requests.
The Jan. 6 committee issued sweeping demands this week for records from the former Trump administration. And on Thursday the former president said he would seek to block the National Archives and Records Administration (NARA) from releasing phone records, memos and other documents that would shed light on what happened inside the White House leading up to and on the day of the Capitol riot.
Only the current president can actually block the release of presidential records through claiming executive privilege, and so the first step in response to the committee's request is to see if the Biden administration cooperates. If it does, Trump could sue in federal court and ask a judge to block NARA from releasing the records.
But for the Biden White House, it’s more complicated than simply saying yes or no to the committee.
“The Biden administration is going to have a lot of very hard conversations about this issue. When I read these requests, they are extraordinarily broad,” said Shaub, who is now a law professor at the University of Kentucky. “These are things the executive branch has protected traditionally as much as they can. I do think they will be wary of setting a precedent.”
The concern for the Biden White House is that if it simply accepts the request and gives the archives the green light to turn over everything requested, it would open itself and all future administrations to similar requests from Congress, even if there is a much less credible reason for the demand.
For example, if Republicans took control of the House of Representatives after the 2022 midterm elections, they could conceivably set up their own select committee to investigate the Biden White House, choosing to focus on the Afghanistan withdrawal or anything else. They could point to the release of records to the Jan. 6 committee as a reason they should have access to the internal records they want.
Shaub said he thought the most likely scenario is that the Biden White House will “meet with the committee and say, ‘What do you need? What's most important to you? We'll give you what we can. We'll give you a briefing on some things that might be very sensitive types of internal communications that the executive branch never turns over.’”
“I think they'll try to work out some compromises and then say that this Jan. 6 commission — because it involves the security of elections and the attack on the Capitol — is on the level of the assassination of JFK and 9/11, so we're going to give you more than what we usually would, but it's not a change in executive branch procedure,” Shaub said.
Kate Shaw, a former White House lawyer in the Obama administration, said she did not think it would be hard for the Biden administration to find this middle way.
“I think that the Biden administration can cooperate quite extensively without setting a precedent that they will have a hard time living with,” Shaw told Yahoo News. “These are such extraordinary events ... they can be pretty open with the committee and provide broad access and make clear they are doing so under extraordinary circumstances.”
In fact, the Biden administration has already navigated these crosscurrents. On July 26, the Justice Department gave authorization to six former DOJ officials who served under Trump to provide “unrestricted testimony” to investigations by the House Oversight Committee and the Senate Judiciary Committee of whether Trump oversaw an attempt to use the Justice Department to overturn the 2020 election results.
“The Department has a longstanding policy of closely protecting the confidentiality of decision-making communications among senior Department officials. Indeed, the Department generally does not disclose documents relating to such internal deliberations,” wrote Associate Deputy Attorney General Bradley Weinsheimer in a letter that went out to the six former Trump officials.
“For decades and across administrations, however, the Department has sought to balance the Executive Branch’s confidentiality interests with Congress's legitimate need to gather information. The extraordinary events in this matter constitute exceptional circumstances warranting an accommodation to Congress in this case,” the letter stated.
“It is the Executive Branch’s view that this presents an exceptional situation in which the congressional need for information outweighs the Executive Branch’s interest in maintaining confidentiality.”
Weinsheimer’s letter also noted that Trump’s attorneys had requested that Biden invoke executive privilege to block the six officials from giving testimony to Congress, but that Biden had rejected this request.
“President Biden has decided that it would not be appropriate to assert executive privilege with respect to communications with former President Trump and his advisors and staff on matters related to the scope of the Committees’ proposed interviews, notwithstanding the view of former President Trump's counsel that executive privilege should be asserted to prevent testimony regarding these communications,” Weinsheimer wrote.
On July 30, the House Oversight Committee released handwritten notes, taken by then-acting Deputy Attorney General Richard Donoghue, purporting to show that on Dec. 27, 2020, Trump told then-acting Attorney General Jeffrey Rosen, “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”
A unique aspect of the executive privilege issue is that there is not a lot of legal precedent. “Because so few disputes make it to court and most have been eventually resolved through compromise, legal scholars have not focused as much on the constitutional dispute between the branches in the context of oversight as they have in other disputed areas, such as war powers,” Shaub wrote in an essay for Lawfare in 2019.
But Trump’s most likely plan of action will be to use the courts to drag the process out past the 2022 midterm elections, in hopes that Republicans retake control of the House and “disband the [Jan. 6] committee,” Shaub said.
“The rationale behind filing the suit is probably to delay everything,” he said.
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