Trump and Biden clash on executive privilege for Capitol riot



Former President Donald Trump on Friday vowed to “take all necessary and appropriate steps” to shield his presidential records from an “extremely broad” request from the House committee investigating the Capitol riot — setting up a potential court battle after President Biden said that the Democrat-led committee should get the documents.

There’s uncertainty about how a court case would end due to how rare it is to have such fights over the records of former presidents, which are stored by the National Archives.

Trump wrote in a letter to the Archives that an initial tranche of records “potentially numbering in the millions” can’t be released to the committee because of legal protections “including but not limited to the presidential communications, deliberative process, and attorney-client privileges.”

A legal fight could delay or scuttle the committee’s request.

The Biden White House says that the Jan. 6 storming of the US Capitol by a wild mob of Trump supporters who disrupted certification of the Electoral College results is a historically unique event that requires transparency.

“The president has determined that an assertion of executive privilege is not warranted for the first set of documents from the Trump White House that have been provided to us by the National Archives,” White House Press Secretary Jen Psaki said Friday at her daily briefing.

Then President Donald Trump speaks during a rally prior to the Capitol riots on January 6, 2021.
Then President Donald Trump speaks during a rally prior to the Capitol riots on January 6, 2021.

“As we’ve said previously, this will be an ongoing process and this is just the first set of documents, and we will evaluate questions of privilege on a case by case basis.”

Psaki added, “The president has also been clear that he believes it to be of the utmost importance for both Congress and the American people to have a complete understanding of the events of that day to prevent them from happening again.”

Trump spoke to a large crowd near the White House and claimed that the election was “stolen” shortly before some of his supporters breached the Capitol and searched for Vice President Mike Pence, whom they hoped would reject electors for Biden from key swing states.

President Joe Biden
President Joe Biden contends that executive privilege is not necessary to access through his predecessor’s records from the National Archives.

An analysis of video by the Wall Street Journal found that members of the Proud Boys group were key players in initiating clashes with police, including helping collapse an outer perimeter while Trump was still speaking.

Trump supporter Ashli Babbitt was fatally shot during the mayhem and three other Trump supporters died of medical emergencies. US Capitol Police officer Brian Sicknick died of a stroke after battling the rioters and several police officers and at least one accused rioter later died by suicide.

Ashli Babbitt, woman who was shot and killed during MAGA siege at US Capitol in Washington, DC, on Jan. 6, 2021.
Protester Ashli Babbitt was fatally shot after attempting to climb through a broken door and into the Speaker’s Lobby during the Capitol riot.

In a statement Friday, Trump said, “The Radical Left Democrats tried the RUSSIA Witch Hunt, they tried the fake impeachments, and now they are trying once again to use Congress to persecute their political opponents. Their requests are not based in law or reality—it’s just a game to these politicians.”

Trump added, “The Democrats are drunk on power, but this dangerous assault on our Constitution and important legal precedent will not work. This Committee’s fake investigation is not about January 6th any more than the Russia Hoax was about Russia. Instead, this is about using the power of the government to silence ‘Trump’ and our Make America Great Again movement, the greatest such achievement of all time.”

In a lengthy analysis for the legal blog Lawfare, former Justice Department Office of Legal attorney Jonathan Shaub wrote this year that the rights of former presidents over documents are uncertain. He wrote about the murky legal terrain in the context of Trump’s impeachment trial for allegedly inciting the riot.

“If Trump attempts to assert executive privilege in the coming impeachment trial and Biden refuses to back it, it would be the first time, to my knowledge, that a former president has attempted to assert executive privilege against Congress contrary to the wishes of the current president,” he wrote.

“Nothing in [court precedent from the case Nixon v. Administrator of General Services] or any other judicial decision compels a particular result when such a clash exists. Nor are there relevant congressional precedents.”

A security worker sits at the National Archives along the National Mall in Washington, D.C., U.S., on Monday, Jan. 18, 2021.
Former attorney Jonathan Shaub argues there is not legal precedent on former presidents defending their administration documents like the National Archive.
Bloomberg via Getty Images

Some Trump associates also indicated they will fight attempts by the House committee to subpoena them.

Former Trump White House strategist Steve Bannon, who was not a White House employee at the time of the riot, asserted he would not comply with the panel’s subpoena — prompting the committee to say it would not rule out “advancing a criminal contempt of Congress referral.”

“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,” Chairman Rep. Bennie Thompson (D-Miss.) and Vice Chair Rep. Liz Cheney (R-Wyo.) said in a statement.

January 6, 2021, Washington Dc, District of Columbia, United States: Protesters seen all over Capitol building where pro-Trump supporters riot and breached the Capitol. Rioters broke windows and breached the Capitol building in an attempt to overthrow the results of the 2020 election.
Former President Donald Trump lashed out at Democrats for using the Capitol riots to silence the “Make America Great Again movement”.

Kash Patel, a former Trump aide and attorney, who worked at the Pentagon at the time of the riot, said in a statement that he wasn’t commenting on what he will do.

“I can confirm that I have responded to the subpoena in a timely manner. Beyond that, I will not comment on my confidential dealings with the Committee,” Patel said. “But I can assure you that I will continue to tell the truth and remain focused on Fight With Kash to help any American who has been censored and misrepresented online.”

Rep. Liz Cheney
Rep. Liz Cheney promises to penalize any witness who defies the House Committee’s subpoenas.
Former White House Chief Strategist Steve Bannon
Former White House Chief Strategist Steve Bannon refuses to comply with the House Committee’s subpoena.

Fights over executive privilege in the past have mooted the relevancy of congressional requests. For example, former Trump national security adviser John Bolton never testified at Trump’s first impeachment trial due to the lack of prompt judicial review of the matter.


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