Biden refuses to assert privilege over Trump documents sought by Jan.6 committee

White House press secretary Jen Psaki told reporters on Friday afternoon that President Joe Biden refused to assert his privilege on documents relating to the administration of former President Donald Trump sought by the select committee of January 6. During the White House press briefing, Psaki said that “the president has determined that an assertion of executive privilege is not warranted for the first set of Trump White House documents provided to us by the Archives national “.

“As we said before, this will be an ongoing process and this is just the first set of documents,” she said. “And we will assess questions of privilege on a case-by-case basis, but the President has also made it clear that he believes it is of the utmost importance for Congress and the American people to have a full understanding of the events of this. that day to prevent it from happening again. “

The archives did not immediately respond to CNN’s request for comment and previously said they viewed the process as described by the Presidential Records Act as “deliberative until a final decision is made. “.

“The documents are Trump-era White House files responding to the Select Committee’s request to the Archivist. a period of time to consider this request, ”Psaki said at Friday’s White House press conference.

Psaki did not want to say what the form of the documents, such as telephone records or visitor logs, was.

In a letter to David Ferriero, the U.S. Archivist, White House attorney Dana Remus writes that the decision not to assert executive privilege applies to a first installment of documents that have been provided to attorneys for the White House and Trump in September. Remus writes that there are other documents that the National Archives have provided to the White House for review and that a decision on whether to invoke executive privilege on these documents has yet to be made.

Remus wrote in the letter that the request comes under “unique and extraordinary circumstances”.

“Congress is examining an attack on our Constitution and democratic institutions provoked and fueled by those who have sworn to protect them, and the conduct under investigation extends far beyond typical deliberations regarding the proper fulfillment of the President’s constitutional responsibilities.” , Remus wrote. “Constitutional protections of executive privilege must not be used to protect, either Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”

The letter concluded: “We understand that the former president feels that executive privilege should be invoked with respect to a subset of the documents. When you notify us of such a statement, we will respond accordingly.

Trump also sent a letter to the National Archives on Friday, claiming that about 40 of the documents initially requested by the committee are subject to executive privilege – a claim that conflicts with Biden’s resolve.

“I hereby formally affirm the privilege of the executive over these documents,” Trump wrote, noting that the committee requested “an extremely large body of documents and records, possibly in the millions” which, according to him, contain information protected by executive or other privilege, such as attorney-client privilege.

“If the committee persists in seeking further inside information, I will take all necessary and appropriate steps to defend the office of the presidency,” Trump added.

The National Archives and Records Administration told CNN it received both letters, but declined to comment further.

Legal experts say Biden has the final say on whether these documents are covered by executive privilege, and given that the committee is headed by members of Biden’s party, Trump’s power to influence the outcome is an open question, which Psaki acknowledged on Friday.

“The process is one that has been described throughout history … the National Archives. And then this president and this White House have the opportunity to look at that,” Psaki said.

The House select committee launched a massive investigation on January 6. As part of this, the panel sent requests for information to a number of federal agencies, including the National Archives, the Trump administration’s custodian of records in the White House.

The committee requested “all documents and communications within the White House” that day, including call logs, schedules and meetings with senior officials and outside advisers, including Rudy Giuliani.

The White House said last month that Biden did not expect to assert executive privilege to prevent these documents from being seen by the committee.

“We take this matter very seriously,” Psaki said at a press briefing on September 24. “The president has already concluded that it would not be appropriate to invoke executive privilege.”

Psaki noted on Friday that “the first set of documents (has been) considered on a case-by-case basis” but stressed that what the Jan. 6 committee is investigating “is not the normal course of government business.”

In August, Trump threatened to invoke executive privilege in a bid to prevent the House select committee from obtaining the massive slice of documents he demanded from several US government agencies, despite his successor having the last word as to whether the information can be shared.

To date, the former president has not been as legally aggressive in trying to assert this privilege as his public statements might suggest and the White House announcement on Friday indicates he will likely struggle. prevent communication of the first batch of documents to the committee.

That said, Trump can still attempt to protect his records by suing the agencies involved – assuming he can muster enough legal firepower for a costly and complex court battle.

If Trump takes legal action, it could, at the very least, slow down the process of handing over the documents, but the former president has little time to take that step, according to Deborah Pearlstein, constitutional law professor at Cardozo. Faculty of Law and expert in presidential powers.

“If the incumbent president has said he is not going to assert privilege, then there is some time (before) that the documents must then be released unless the former president succeeds in obtaining an order. court, an injection, for example, prohibiting their release, “she told CNN. “It would require a pretty big decision from a federal court.”

“It’s not impossible, but all of this is now under a ticking clock,” she added, noting that we might see activity “if the former president and his team are aggressive legally, the sooner. possible”.

This story has been updated with additional reports and reactions.

CNN’s Jeremy Diamond, Maegan Vazquez, Kaitlan Collins, and Kevin Liptak contributed to this report.

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