Although it may appear that President Biden would easily approve a request from the Jan.6 select committee for Trump White House records, the truth is that it poses a challenge to his administration.
Jonathan David Shaub, an ex-Justice Department attorney, stated that he believes the Biden administration will be more protective than people think. He was a former legal counsel in the Office of Legal Counsel, which deals with issues such as executive privilege during Obama's administration.
The White House of Biden will have to balance the need for information on the insurrection and the instinct to protect its future presidents from record requests.
After a hearing on July 27, Rep. Bennie Thompson (D-Miss.), speaks. (Tom Williams/CQ roll call via Getty Images
This week, the Jan. 6 committee demanded records from the ex-Trump administration. On Thursday, the ex-president declared that he would block the National Archives and Records Administration from disclosing phone records, memos and any other documents that could shed light on the events at the White House up to and during the Capitol riot.
The president can only block the release presidential records by claiming executive privilege. Therefore, the first step to respond to the committee's request to see if Biden's administration cooperates is to determine if it does. Trump could file a federal lawsuit to stop NARA from releasing records.
The Biden White House understands that it is more than just saying yes or not to the committee.
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This issue will be a subject for a lot of hard conversations by the Biden administration. These requests are very broad when I read them, stated Shaub, now a University of Kentucky law professor. These are issues that the executive branch has always protected as best they can. They will likely be cautious about setting a precedent, I think.
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Biden White House has to be cautious about accepting the request and giving the archives permission to turn over all requested documents. This would expose it and future administrations to similar requests by Congress, even if the reason is less credible.
Trump supporters stormed the U.S. Capitol Jan. 6. (Brent Stirton/Getty Images).
If the Republicans take control of the House of Representatives following the 2022 midterm election, they could set up their own committee to investigate the Biden White House. They could choose to focus on Afghanistan withdrawal or any other topic. They could cite the Jan. 6 release of records as a reason why they should have access the internal records they need.
Shaub stated that he believes the most likely scenario is for the Biden White House to meet with the committee and ask, "What do you need?" What is most important to your family? We will do our best to help you. We will give you an overview of some sensitive internal communications that are not normally disclosed to the executive branch.
They'll attempt to find compromises, then say that the Jan. 6 Commission, which involves security of elections, and the attack on Capitol is on JFK's level, so we're willing to give you more than we normally would, Shaub stated.
Kate Shaw, an ex-White House lawyer under Obama, stated that she didn't think it would prove difficult for the Biden administration find this middle road.
Shaw stated to Yahoo News that he believes that the Biden administration could cooperate extensively without setting a precedent they would have trouble living with. These are extraordinary events... They can be very open with the committee, provide broad access, and let it be known that they are doing this under extraordinary circumstances.
On August 20, President Biden spoke at the White House. (Kent Nishimura/Los Angeles Times via Getty Images).
These crosscurrents have been successfully navigated by the Biden administration. The Justice Department granted authorization to six former DOJ officers who worked under Trump to give unrestricted testimony in investigations by the Senate Judiciary Committee and the House Oversight Committee. These investigations were to determine whether Trump was involved in an attempt to use his Justice Department to reverse the 2020 election results.
The Department has had a long-standing policy of protecting senior Department officials' confidential decision-making communications. In fact, documents related to such internal deliberations are not disclosed by the Department, stated Bradley Weinsheimer, Associate Deputy Attorney General, in a letter sent to six former Trump officials.
The Department has tried to balance the Executive Branch's confidentiality with Congress's legitimate right to collect information for decades. The letter noted that the extraordinary circumstances in this case are exceptional and warrant an accommodation to Congress.
The Executive Branch believes that this is an extraordinary situation where the congressional need to know more than the Executive Branch's interest in keeping confidentiality.
Weinsheimers letter also stated that Trumps lawyers had requested that Biden invoke executive confidentiality to prevent the six officials giving testimony to Congress. However, Biden rejected this request.
Donald Trump, former President, addresses supporters during a rally in Cullman (Ala.) on Aug. 21. (Chip Somodevilla/Getty Images)
President Biden decided not to invoke executive privilege in respect of communications with former President Trump, his advisors, and staff regarding matters related to the Committees' proposed interviews. This is despite the view of Weinsheimer, former President Trump's counsel, that executive privilege should be used to prevent testimony about these communications.
The House Oversight Committee released handwritten documents, taken by Richard Donoghue (then-acting Deputy attorney general), on July 30. These notes purport to show that Trump said to Jeffrey Rosen, then-acting AttorneyGeneral, that Trump had told him that Trump's election was corrupt.
One unique aspect of executive privilege is the lack of precedent. In an essay written for Lawfare in 2019, Shaub stated that because so few disputes reach court, and most are eventually settled through compromise, legal scholars haven't focused as much on constitutional disputes between branches in the contexts of oversight than they have in other disputed areas like war powers.
Trump's most likely course of action is to use the courts to drag this process out beyond the 2022 midterm election, Shaub stated. This will allow Republicans to retake control and disband [Jan.6] the committee.
He stated that the reason for filing suit was to probably delay everything.
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