WASHINGTON – The White House tends to give Congress information about what Donald Trump and his staff did during the January 6 attack on the U.S. Capitol, despite objections from the former president – a decision that is significant political and legal Could have an impact.
Trump has said he will use “executive privilege” to block requests for information from the House Special Committee investigating the day’s events, drawing on a legal theory that has successfully allowed presidents and their aides to control Congress Avoid or delay for decades, including during the Trump administration.
However, President Joe Biden’s White House plans to err on the disclosure side given the gravity of the January 6th events, according to two people familiar with discussions who, like others, spoke on condition of anonymity to describe the private discussions .
When asked about the White House deliberations on the release of information, Biden spokesman Michael J. Gwin said the president viewed the attack on the Capitol as “a dark mark in our country’s history” and was “deeply committed to ensuring that something like that “can never happen again, and he supports a thorough investigation.”
Members of the committee of inquiry argue that Trump no longer enjoys the protection of executive privileges and encourage the White House to set aside institutional concerns about sharing information with Congress and assist the panel in an investigation that focuses on what is Democrats and a handful of Republicans as an attack on democracy.
“It’s not really relevant because there is no president involved – there is no executive privilege of a former president,” said Rep. Jamie B. Raskin, D-Md., A committee member who teaches constitutional law. “It’s extremely watered down and not really relevant.”
What Trump did during the attack and who he spoke to is among the big unanswered questions about the attack on the Capitol and his administration’s response during these hours.
The debate over the veracity of its allegations about executive privileges comes as the committee moves into a new, more aggressive phase of its investigation. After soliciting materials – and getting some responses – from telecommunications companies, social media companies, and the White House, she’s now considering how best to get testimony and documents from those who are reluctant to attend.
Committee chairman Bennie G. Thompson, D-Miss., Said this week that his panel will shortly issue subpoenas to witnesses and organizations, adding that the committee has begun giving evidence behind closed doors with cooperative witnesses to plan. A preliminary list of subpoenas is expected to be released by the committee as early as Thursday and may include prominent Trump allies and White House officials.
Trump has derided the committee’s work as partisan and promised to combat its efforts to gather information and testimony related to the attack.
“The very partisan communist-style ‘selection committee’ has presented an outrageously broad filing request that lacks both legal precedents and legislative merit,” Trump spokesman Taylor Budowich said in a statement. “Executive privilege is defended not only on behalf of President Trump and his administration, but also on behalf of the office of the President of the United States and the future of our nation.”
In response to the House Panel’s request, the National Archives have already identified hundreds of pages of documents from Trump’s White House that are relevant to its investigation. As required by law, the material will be turned over to the Biden White House and Trump’s attorneys for review.
The committee’s August 25 letter to the National Archives was both comprehensive and detailed, calling for “all documents and communications within the White House on January 6, 2021 that relate in any way to the events of that day.” This includes investigating whether the White House or Trump’s allies have worked to delay or stop the counting of the votes and whether an obstruction to the peaceful transfer of power has been discussed.
The letter requested call logs, schedules, and meetings for a large group, including Trump’s adult children, his son-in-law and senior advisor Jared Kushner and first lady Melania Trump, and a variety of aides and advisors, including his attorney Rudolph W. Giuliani.
The committee has focused in part on gathering information on whether Trump’s White House and members of Congress played a role in promoting the demonstrations that disrupted constitutional certification of votes and a series of violent confrontations with the U.S. Capitol Police triggered.
To date, more than 650 people have been charged with crimes in connection with the violent demonstrations that delayed this vote. Many have been charged with obstructing federal proceedings and knowingly entering or staying in a restricted building. Documents and testimony could reveal whether White House officials and members of Congress encouraged or supported these actions, Congress officials said.
The White House documents requested by the panel are identified by staff at the National Archives and then sent to Biden and Trump’s lawyers. The first tranche was sent on August 31, according to a person familiar with the transfer.
Trump has 30 days after delivery of the documents to decide whether to object to their release under the law. Even if he speaks out against a surrender, the Biden White House has the authority to make decisions and can approve it after another 60 days against Trump’s objections. Trump’s remaining option would be to go to court to try to stop the release, legal advisors said.
While Trump has adopted a defiant tone, his options could be limited if Biden decides to reveal the information the former president believes should be protected, according to several legal experts – including those who have examined similar requests in the past.
“The law we have is not favorable to the former president,” said Bob Bauer, who served as a White House advisor under President Barack Obama. “A past president has the opportunity to review materials, address privileges, and take the dispute to court if the past and current presidents cannot agree.”
Bauer added that while an investigation by a former president is unique, legal precedents suggest disclosing the information Congress requests.
“The circumstances here – the former president was then acting in his capacity as a candidate who wanted to contest his electoral defeat – make this tough battle much, much tougher,” he said.
Norm Eisen, a former Obama appointee who advised the first House impeachment investigation against Trump, said the former president’s power to enforce executive privileges has been weakened since he left the White House.
“The blocking of executive privileges that Trump used during his tenure will no longer work,” said Eisen, noting that the current president – not the former – has actual decision-making powers.
A former federal judge who worked in the Ronald Reagan White House and George HW Bush’s Department of Justice on executive privilege issues noted that privilege requests typically do not seek to protect information about potential wrongdoing.
“With a few notable exceptions, it has been the historical practice for presidents to avoid exercising executive privileges to protect information from disclosure that suggests misconduct or potential misconduct by a president and / or his advisors,” J. Michael Luttig , a former US federal judge, said in an email.
Several cases of requests for Richard Nixon’s tapes and other White House recordings set a precedent for the release of President’s recordings when requested by Congress or government agencies.
In 1977, the Supreme Court in the Nixon v Administrator of General Services case denied Nixon’s privilege claims over tapes and White House documents, advocating the idea that executive privileges were “not for the benefit of the president as an individual, but for the benefit” of the republic. “
Legal experts also pointed to recent private conversations with Trump officials and Congress that could provide a path to a solution that is not connected to trial. They cite negotiations between Trump attorneys, the Justice Department and the Senate Judiciary Committee who are investigating allegations that a Trump Justice Department official Jeffrey Clark attempted to use post-election Department resources to address Trump’s allegations of massive election fraud to support.
In the end, the Biden Justice Department waived executive privileges, and two of Trump’s senior Justice Department officials Jeffrey Rosen and Richard Donoghue sat down for interviews with the Senate Judiciary Committee and provided detailed reports on what happened after the election.
The decisions Biden and Trump are making about the current recordings and interview requests will be momentous, said Jonathan Turley, a professor at George Washington University who has written on protecting White House documents and previously argued that the impeachment efforts of the Democrats against Trump were misled to harness the power of Congress.
“There is an unbroken tradition of honoring incumbent presidents to their predecessors,” said Turley. “In the past, despite party differences, incumbent presidents generally supported their predecessors in restricting access. It seems that we are ready here to destroy this tradition. “
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Josh Dawsey of the Washington Post contributed to this report.