New memos show the White House was closely involved in the investigation before the FBI, explicitly stating that Biden would take the almost unprecedented step of waiving legitimate Executive Privilege claims to transfer information to the Department of Justice. This means the investigation was engineered by the Biden Administration on highly suspect legal grounds, though they continue to deny any and all involvement.
Late last year, many fair-minded observers were stunned when the Biden Administration took the highly unusual step of waiving Executive Privilege claims related to former President Trump. Privilege has long been a cornerstone of protecting the Executive from encroachment by Congress, a co-equal branch of government, and the endless investigations a Chief Executive could might be subject to. Effectively, documents and other materials under Executive Privilege are sealed off from prying eyes outside the President’s specific discretion until a court can adjudicate the merits of the claim. The process is designed to balance the ability of the President to receive open, unguarded, unbiased advice from his closest advisors without fear of reprisal, political or otherwise, and the rest of the government’s right to know the inner workings of the Presidency. It’s essential to the functioning of government in general: No advisor would tell the President anything if they believed their words would be freely distributed without the President’s express permission. The privilege, however, can only be invoked by the current occupant of the Oval Office, or at least that’s the prevailing theory. Once a person leaves the Presidency, any claims of privilege they made become the responsibility of their successor. The successor is free to choose whether to continue to assert the privilege or waive it. For obvious reasons, most Presidents have chosen to support their predecessor’s claims. In a two party system, the Presidency necessarily changes hands, and the protection of the powers of the office takes precedence over partisan squabbles or political payback.
Sadly, President Joe Biden has chosen a radically different path. Beginning last year, he has systematically dismantled former President Trump’s privilege claims. As CNN described it at the time, “There have been occasions in US history when former presidents have sniped at and tried to undermine their successors. Many presidents have expressed private frustration with the antics of their predecessors. But nothing in the modern era matches the confrontation between the 45th and 46th Presidents.” The dispute was said to begin over whether or not the National Archives should provide information to the House Select Committee on January 6. White House Counsel Dana Remus wrote the official White House position on the matter last October, claiming “President Biden has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified. Accordingly, President Biden does not uphold the former President’s assertion of privilege,” setting of a media firestorm. Even normally friendly outlets expressed some concerns at this breach of democratic norms. The Washington Post noted that Biden had “rejected 200 years of history” in abandoning executive privilege.” The Associated Press described it as a “risky move” that “could come back to haunt him – and future presidents.” “Biden’s decision not to block the information sought by Congress challenges a tested norm — one in which presidents enjoy the secrecy of records of their own terms in office, both mundane and highly sensitive, for a period of at least five years, and often far longer. That means Biden and future presidents, as well as Trump.” Saikrishna Prakash, a law professor at the University of Virginia and expert in Presidential powers noted, “every time a president does something controversial it becomes a building block for future presidents.”
At the time, it was believed Biden had breached precedent over January 6 and some were happy to accept this excuse based on the “extraordinary” circumstances of that regrettable day. As the Associated Press put it, “The argument that the special circumstances of the attack justify the extraordinary release should guard against the erosion of executive privilege for presidencies going forward, some experts said.” “By ratcheting up how extraordinary and extreme it is, it limits the precedent going forward,” explained Jonathan Shaub, assistant professor at the University of Kentucky J. David Rosenberg College of Law and a former adviser in the Office of Legal Counsel under President Barack Obama. These statements were made without any evidence, and sure enough, we learned this week that the Biden Administration was using simultaneously these waivers to launch an FBI investigation into the former President over his disputes with the National Archives only a few months later. Memos obtained by Just The News detail how White House Deputy Counsel Jonathan Su began engaging in conversations with the Archives, the FBI, and the Department of Justice in April of this year. Crucially, these conversations occurred after the former President returned requested materials to the Archives and continued to be engaged in the process, meaning there was no obvious reason to treat this as a criminal matter. Regardless, Mr. Su was pushing for exactly that, informing the Archives that the President would waive privilege once again, enabling the Department of Justice to convene a grand jury. On May 10, acting National Archivist Debra Steidel Wall sent a memorandum to the former President’s attorneys noting the White House had become formally involved. “On April 11, 2022, the White House Counsel’s Office — affirming a request from the Department of Justice supported by an FBI letterhead memorandum — formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes,” she wrote Evan Corcoran, Trump’s attorney. Ms. Wall specifically described how she’d been empowered to bypass any privilege claims. “The Counsel to the President has informed me that, in light of the particular circumstances presented here, President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President’s purported ‘protective assertion of executive privilege,’” she wrote. “I have therefore decided not to honor the former President’s ‘protective’ claim of privilege.”
Even worse, this maneuvering was occurring while President Trump was requesting time to review the documents in question and determine whether he believed they fell under Executive Privilege. “We have requested the ability to review the documents,” Mr. Corcoran wrote to Gary Stern, General Counsel for the National Archives on April 29, copying Mr Su as well. “That review is necessary in order to ascertain whether any specific document is subject to privilege. We would respectfully request that you restrict access to the documents until we have had the opportunity to review the documents and to consult with President Donald J. Trump so that he may personally make any decision to assert a claim of constitutionally based privilege.” Less than two weeks later, however, Ms. Wall informed Mr. Corcoran that the White House had intervened and refused to honor any claims. “The White House Counsel’s Office acquiesced in an extension of the production date to April 29, and so advised NARA,” she explained. “In accord with that agreement, we had not yet provided the FBI with access to the records when we received your letter on April 29, and we have continued to refrain from providing such access to date.” Ultimately, however, she repeated the same line, “I have consulted with the Assistant Attorney General for the Office of Legal Counsel to inform my ‘determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.’… I have therefore decided not to honor the former President’s ‘protective’ claim of privilege.” Following this missive, a grand jury was empaneled in two weeks and a subpoena was issued for the documents, but once again all of this was occurring while former President Trump was cooperating with the National Archives. They visited Mar-a-Lago on June 3, personally met the former President, and by all accounts were granted access to the complete facility. It was barely two months later when Attorney General Merrick Garland approved the infamous and unprecedented raid.
Why is this important? For starters, the Biden Administration has been lying about their involvement. White House Press Secretary Karine Jean-Pierre has insisted multiple times that the White House only learned about the raid in the news, just like everyone else, and that no one at the White House was aware of the investigation. She has denied all knowledge, claiming the “President was not briefed, did not – was not aware of it. No. No one at the White House was given a heads up. No, that did not happen.” Now, however, we know that senior White House lawyers were conspiring with the National Archives in secret to waive likely legitimate privilege claims. How do we know they are likely legitimate? For two reasons. First, the courts have maintained since 2012 that the President, while in office, has sole discretion over what is returned to the Archives and what is a personal record. There are millions of pages of documents from the Obama Administration that have yet to be returned. Instead, they struck a deal with the Archives to digitize the records so they can be used for both the historical record and the President’s future library. The records have yet to be digitized either, but no grand jury has ever been empaneled or raid conducted. It beggars reason that none of these records contain any classified information. There are apparently millions of them. It is also true that some Presidential Libraries have held on to documents for decades after the death of the President in question. They still do not send 30 agents to secure them. Second, Trump’s attorney makes clear that he was not planning to exert privilege over all of the materials. Rather, he requested the time to determine which ones were valid. This is the normal, completely legitimate process, completely overruled by President Biden with the express intention of opening an investigation. What other goal could there be? The secrecy of the machinations shouldn’t be understated either. Previously, they made a big media spectacle about waiving the claim for the unprecedented nature of January 6. Barely a few months later, they were doing the same thing behind closed doors while denying any and all involvement. It is, of course, possible that the President was not personally informed of the raid in advance, but clearly his team was well aware of the ongoing investigation and the equally unprecedented waiver of privilege.
It doesn’t get much dirtier than this, but now it seems more likely than ever that the Supreme Court will ultimately have to weigh in. The belief that the invocation of Executive Privilege is the exclusive prerogative of the current President is based on a Nixon era, Watergate decision. At issue was whether an agreement struck between an out of office President and the General Services Administration could be revoked by the passage of a new law. Essentially, President Nixon negotiated the disposition of his records after he died, but Congress then passed legislation counter to that agreement. The Court ruled that the act doesn’t violate the separation of powers because it was signed into law by the Executive Branch. The act itself, however, allowed for “the need to protect any party’s opportunity to assert any constitutionally based right or privilege,” and the Supreme Court has never specifically ruled on a situation akin to the current (close to) Constitutional crisis. Even Ms. Wall’s letter to Mr. Corcoran noted that the decision only “strongly suggests that a former President may not successfully assert executive privilege ‘against the very Executive Branch in whose name the privilege is invoked.’” Some legal experts believe that Executive Privilege must extend beyond a President’s time in office to be meaningful. Alan Dershowitz explained to Just The News, “The best thinking is that an incumbent president cannot waive the right of the previous president. It would make a mockery of the whole notion of privilege.” No one knows how the Court will rule, but we do know the stench of corruption and political malfeasance keeps growing the more we learn about the raid and the scheming that lead to it. There is no doubt it was engineered by the Biden Administration, which was apparently happy to manipulate the law and breach longstanding democratic norms to do so. Tell me again, who are the protectors of democracy these days?