Former President Donald Trump is pleading with a federal judge in Washington to slow down the Jan. 6 committee’s effort to obtain his White House records, instead asking her to order a document-by-document review that could take months.
In a 33-page filing, Trump’s attorney is asking Judge Tanya Chutkan to reject the House’s effort to obtain documents from the former president’s White House that he says should be shielded by executive privilege. President Joe Biden has declined to assert privilege on Trump’s records, leaving Trump’s lawsuit as the only obstacle to Congress obtaining his records.
Anything less, says lawyer Jesse Binnall, would erode the presidency itself by granting unfettered access for Congress into the records of a former president.
“This Court should refuse to allow Defendants’ naked political ploy and preserve the institution of the presidency,” Binnall writes.
In making his argument, Binnall falsely claimed that “both the FBI and Senate have confirmed that there was no coordinated effort, including at the White House, to overturn the election on January 6.”
Reuters reported in August that the FBI had so far found “scant” evidence that there was a broader conspiracy beyond small pockets of militia groups, and Binnall cited that report, sourced to “four current and former law enforcement officials” as evidence of his claim. But the FBI has not affirmed this conclusion, and the Jan. 6 committee explicitly rejected this contention.
But the FBI has stated no such official conclusion, and lawmakers have insisted this is not the case.
“We’ve received answers and briefings from the relevant entities, and it’s been made clear to us that reports of such a conclusion are baseless,” Jan. 6 Committee leaders, Reps. Bennie Thompson and Liz Cheney said in a statement last month.
Binnall also cited a Senate committee’s report on security failures as proof the Senate agreed there was no conspiracy. But, the Senate committee that examined the security breakdown in the Capitol specifically focused its review on law enforcement agencies like the Capitol Police and National Guard, declining to expand its purview into Trump’s activities. Members emphasized they had left that part of the investigation to others.
Chutkan has called a hearing in the matter on Thursday. The National Archives has filed its own brief, authored by Justice Department attorneys, detailing the documents that Trump wants to withhold from investigators. They include records pulled from senior aides like former Chief of Staff Mark Meadows, former adviser Stephen Miller and former counsel Patrick Philbin. They also include speech drafts, as well as call and visitor logs.
In supporting release of the records to Congress, Biden has said he declined to assert privilege for Trump because of the unprecedented nature of the attacks and questions about the White House’s involvement under Trump.
Binnall says many of these documents are precisely those intended to be protected from release and that many are irrelevant to the House investigation, or any potential legislation that might arise from it.
“The documents at issue include legal documents, call logs, schedules, and briefing materials that are plainly privileged and irrelevant for purposes of legislating regarding anti-terrorism laws, presidential transitions, or other legislation,” he writes. ”The Committee has never explained how the President’s schedule, call logs, legal documents, or other briefing materials will assist it in developing legislation to protect the United States or to ensure a peaceful transfer of power.”
The House, National Archives and other executive privilege experts, however, have argued that this argument fails because executive privilege only applies to the sitting president, who is charged with making decisions intended to protect the office. While a former president may have an interest in asserting privilege over records, there’s no supporting case law that would allow a former president to override his successor on such matters. Doing so would create a “shadow presidency” those experts say.
Binnall said those arguments fail to account for the need to protect candid advice given to presidents well after their terms end — or else risk eroding candor in future presidencies.
“True, executive privilege is qualified, not absolute,” he writes. “For that matter, neither is any other privilege. But the rights of former presidents are not as easily tossed aside as Defendants contend.”