President Joe Biden will not block the release of a tranche of documents sought by a House committee for its investigation into the January 6 insurrection at the U.S. Capitol, setting up a showdown with former President Donald Trump, who has pledged to try to keep records from his time in the White House from being turned over to investigators.
In a letter to the Archivist of the United States, White House counsel Dana Remus writes that Biden has determined that invoking executive privilege “is not in the best interests of the United States.” This came days after Trump lawyers sought to block the testimony of former Trump officials to the House committee, citing executive privilege.
On Friday, a lawyer for Steve Bannon said the former White House aide wouldn’t comply with the House committee’s investigation because of Trump’s claim.
In August, the House committee investigating the insurrection asked for a trove of records, including communication within the White House under Trump and information about planning and funding for rallies held in Washington. Among those events was a rally near the White House featuring remarks by Trump, who egged on a crowd of thousands before loyalists stormed the Capitol.
Importance of documents
In the letter, Remus writes that the documents reviewed “shed light on events within the White House on and about January 6 and bear on the Select Committee’s need to understand the facts underlying the most serious attack on the operations of the Federal Government since the Civil War.”
The Associated Press obtained a copy of the letter Friday, which was first reported by NBC News.
Copies of the documents responsive to the request were turned over to the Biden White House and Trump’s lawyers for review for potential executive privilege concerns in accordance with federal law and the executive order governing presidential records.
The committee’s 10-page request to the Archives seeks “all documents and communications within the White House on January 6, 2021” related to Trump’s close advisers and family members, the rally at the nearby Ellipse and Trump’s Twitter feed. It asks for his specific movements on that day and communications, if any, from the White House Situation Room. Also sought are all documents related to claims of election fraud, as well as Supreme Court decisions on the topic.
Biden’s decision affects only the initial batch of documents reviewed by the White House. Press secretary Jen Psaki said subsequent determinations would be made on a case-by-case basis.
The current president has the final say unless a court orders the Archives to take a different action. Trump has not formally sought to invoke executive privilege over the documents, though that action is expected soon.
Trump is expected to take legal action to block the release of the documents, which, if a block was granted, would mark a dramatic expansion of the unwritten executive power. Trump will have an uphill battle, as courts have traditionally left questions of executive privilege up to the current White House occupant — though the former president’s challenges could delay the committee’s investigation.
Two witnesses ‘engaging’
Two other witnesses subpoenaed by the panel, former White House Chief of Staff Mark Meadows and former Pentagon aide Kash Patel, are “engaging” with the committee, according to its Democratic chairman, Mississippi Representative Bennie Thompson, and Republican vice chairwoman, Representative Liz Cheney of Wyoming. Thompson and Cheney issued a statement Friday after a deadline for document production had passed.
“Though the Select Committee welcomes good faith engagement with witnesses seeking to cooperate with our investigation, we will not allow any witness to defy a lawful subpoena or attempt to run out the clock, and we will swiftly consider advancing a criminal contempt of Congress referral,” the two lawmakers said.
A spokesman for the panel declined to comment on the status of a fourth witness, former Trump communications aide Dan Scavino.
Bannon’s move sets the stage for a likely clash with House Democrats who are investigating the roles of Trump and his allies in the run-up to the riot, when a large mob of Trump supporters broke into the Capitol as Congress was certifying the results of the presidential election won by Biden, a Democrat. The committee is rapidly issuing subpoenas to individuals who are either connected to Trump or who helped plan the massive rally on the morning of January 6 at which he told his supporters to “fight like hell.”
Bannon’s refusal to comply, and Trump’s vow to litigate the testimony, will mean certain delays in the panel’s probe. But members of the committee, several of whom worked as prosecutors on Trump’s two impeachments, were prepared for the possibility and have repeatedly threatened charging witnesses with contempt. Trump often successfully fought witness testimony during his presidency but may find his legal standing shakier now that he is out of office.
A committee effort to charge witnesses with contempt would likely involve a vote of the full House and a referral to the Justice Department. It would then be up to Justice how to proceed with charges.
‘Unable to respond’
Bannon’s lawyer, Robert Costello, said in letter to the panel dated Thursday that until the issues over privilege are resolved, “we are unable to respond to your requests for documents and testimony.”
Costello wrote that Bannon, a former aide to Trump who had contact with him the week of the Capitol attack, is prepared to “comply with the directions of the courts” when and if they rule on the issue.
The letter includes excerpts from a separate letter sent to Bannon by Justin Clark, a lawyer for Trump. Clark says documents and testimony provided to the January 6 panel could include information that is “potentially protected from disclosure by executive and other privileges, including among others the presidential communications, deliberative process and attorney client privileges.”
Clark wrote to Bannon that “President Trump is prepared to defend these fundamental privileges in court.”
Spokespeople for Trump have not returned messages seeking comment. Trump said in a statement last month that he would “fight the Subpoenas on Executive Privilege and other grounds, for the good of our Country.”
As a former president, Trump cannot directly assert privilege to keep witnesses quiet or documents out of the hands of Congress. As the current president, Biden will have some say in the matter.