Risky move: Biden undercuts WH executive privilege shield

Presidents tend to be protective of their executive privilege to keep White House documents private, both for themselves and their predecessors. But any White House move to deny the congressional request for records on Trump’s activities could antagonize Democratic legislators just when Biden needs their support to advance his agenda.

The documents requested by the congressional committee are part of a lengthy and rancorous investigation into how the mob was able to infiltrate the Capitol and disrupt the certification of Biden’s presidential victory in the most serious assault on Congress in two centuries. More than 630 people have been charged criminally in the attack, the largest prosecution in U.S. history.

Thousands of documents have been sought from the Trump administration to determine how the insurrection could have happened. Many of those requests went to the National Archives, where Trump’s correspondence is held during his time in office.

According to an executive order on presidential records, the archivist of the United States “shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.”

“Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them,” White House counsel Dana Remus wrote in a letter to the archivist. “The constitutional protections of executive privilege should not be used to shield, from Congress or from the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”

Trump responded with his own letter to the National Archives formally asserting privilege over nearly 50 documents.

Referring to the Presidential Records Act, Trump wrote, “I hereby make a protective assertion of constitutionally based privilege with respect to all additional records.” He said if the committee seeks other information he considers privileged information, “I will take all necessary and appropriate steps to defend the Office of the Presidency.”